Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 1 of 39
ADRMOPTERM,APPEAL,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:19−cv−00892−HSG

Sierra Club et al v. Trump et al Assigned to: Judge Haywood S Gilliam, Jr Relate Case Cases: 4:19−cv−00872−HSG
4:20−cv−01494−HSG Case in other court: Ninth Circuit Court of Appeals, 19−16102
Ninth Circuit Court of Appeals, 19−16300 Ninth Circuit Court of Appeals, 19−17501 Cause: 42:4321 Review of Agency Action−Environment Plaintiff

Date Filed: 02/19/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Sierra Club

represented by 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

Andre Ivan Segura ACLU Foundation of Northern California, Inc. PO Box 8306 Houston, TX 77288 713−325−7011 Fax: 713−942−8966 Email: asegura@aclutx.org ATTORNEY TO BE NOTICED

Christine Patricia Sun ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: csun@aclunc.org TERMINATED: 09/17/2019

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 2101 Webster Street Suite 1300 Oakland, CA 94612 415−977−5772 Email: gloria.smith@sierraclub.org

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 2 of 39
ATTORNEY TO BE NOTICED
Hina Shamsi American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10019 212−549−2500 Email: hshamsi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan L. Hafetz American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−284−7319 Email: jhafetz@aclu.org PRO HAC VICE 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
Omar C. Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2620 Fax: (212) 549−2654 Email: ojadwat@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 California, Inc.

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 3 of 39

Plaintiff
Southern Border Communities Coalition

39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: vtalla@aclunc.org ATTORNEY TO BE NOTICED
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 ATTORNEY TO BE NOTICED
represented by Dror Ladin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/17/2019
David A Donatti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan L. Hafetz (See above for address) PRO HAC VICE 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
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 4 of 39
ATTORNEY TO BE NOTICED
Cecillia Derphine Wang (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump in his official capacity
Defendant Patrick M. Shanahan in his official capacity TERMINATED: 06/28/2019

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
Rachael Westmoreland U.S. Department of Justice Civil Division P.O. Box 883 Washington, DC 20044 (202) 514−1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant U.S. Department of Justice Environment and Natural Resources Division 950 Pennsylvania Avenue, N.W., Room 2611 Washington, DC 20530 (202) 514−0943 Email: eric.grant@usdoj.gov ATTORNEY TO BE NOTICED
James Mahoney Burnham United States Department of Justice 950 Pennsylvania Ave, NW Room 3131 Washington, DC 20530 202−353−5049 Email: james.burnham@usdoj.gov TERMINATED: 02/04/2020
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant (See above for address) ATTORNEY TO BE NOTICED

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 5 of 39

Defendant Kirstjen M. Nielsen in her official capacity TERMINATED: 06/28/2019
Defendant Steven Mnuchin in his official capacity
Defendant Mark T Esper in his official capacity as Acting Secretary of Defense

James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant (See above for address) ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020 ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant (See above for address) ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant (See above for address) ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 6 of 39

Defendant Kevin K. McAleenan in his official capacity as Acting Secretary of Homeland Security
Amicus United States House of Representatives
Amicus United States House of Representatives
Amicus Brennan Center for Justice TERMINATED: 05/07/2019

represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Grant (See above for address) ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
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
represented by Douglas N. Letter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Barbero U.S. House of Representatives Office of General Counsel 219 Cannon HOB Washington, DC 20515 202−225−9700 Email: megan.barbero@mail.house.gov ATTORNEY TO BE NOTICED
represented by Elizabeth Goitein Brennan Center for Justice 1140 Connecticut Ave. NW Ste. 1150 Washington, DC 20036 (202) 249−7192 Email: goiteine@brennan.law.nyu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Andrew Boyle Brennan Center for Justice 1140 Connecticut Avenue NW Suite 1150 Washington, DC 20036 202−753−5909

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 7 of 39

Amicus Christopher Shays
Amicus Christine Todd Whitman

Email: boylea@brennan.law.nyu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David W. Evans Haight Brown & Bonesteel LLP Three Embarcadero Center Suite 200 San Francisco, CA 94111−4005 415−546−7500 Fax: (415) 546−7505 Email: devans@hbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino Willkie Farr and Gallagher LLP 787 Seventh Avenue New York, NY 10019 212−278−8000 Email: rmancino@willkie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield Haight, Brown, & Bonesteel Three Embacadero Center, Suite 200 San Francisco, CA 94111 (415) 546−7500 Fax: (415) 546−7505 Email: hgarfield@hbblaw.com ATTORNEY TO BE NOTICED
Matthew Richard Dollan Willkie Farr Gallagher LLP 787 7th Avenue New York, NY 10019 (212)728−8583 Email: mdollan@willkie.com TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein Willkie Farr and Gallagher LLP 1875 K Street Washington, DC 20006 202−303−1000 Email: rbernstein@willkie.com ATTORNEY TO BE NOTICED
Shaimaa M Hussein Willkie Farr Gallagher LLP 787 7th Avenue New York, NY 10019 (212)728−8638 Email: mao@willkie.com ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 8 of 39

Amicus Peter Keisler
Amicus Carter Phillips

ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED
Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED
Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 9 of 39

Amicus John Bellinger, III
Amicus Stanley Twardy

ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED
Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED
Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 10 of 39

Amicus Richard Bernstein
Amicus Amici Curiae Former Members of Congress
Amicus Erwin Chemerinsky

Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by David W. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Mancino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Michael Garfield (See above for address) ATTORNEY TO BE NOTICED
Matthew Richard Dollan (See above for address) TERMINATED: 05/09/2019 PRO HAC VICE
Richard D. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Shaimaa M Hussein (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas Andrew Winthrop Arnold & Porter LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: douglas.winthrop@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, NW Suite 501 Washington, DC 20036 202 296 6889 Fax: 202 296 6895 Email: elizabeth@theusconstitution.org LEAD ATTORNEY

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 11 of 39

Amicus Michael C. Dorf
Amicus David A. Strauss
Amicus Stephen I. Vladeck
Amicus 58 Religious Organizations

ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary T. Lafayette Lafayette & Kumagai LLP 1300 Clay Street, Suite 810 Oakland, CA 94612 (415) 357−4600 Fax: (415) 357−4605 Email: glafayette@lkclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adeel A. Mangi Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212−336−2000 Email: aamangi@pbwt.com ATTORNEY TO BE NOTICED
Brian H. Chun Lafayette & Kumagai LLP 1300 Clay Street, Suite 810 Oakland, CA 94612 (415) 357−4600 Fax: (415) 357−4605 Email: bchun@lkclaw.com ATTORNEY TO BE NOTICED
Mohammed Amir Badat Patterson Belknap Webb and Tyler LLP 1133 Sixth Ave. Floor 24 New York, NY 10036 212−336−2527 Email: abadat@pbwt.com ATTORNEY TO BE NOTICED
Steven A. Zalesin Patterson Belknap Webb and Tyler LLP 1133 Avenue of the Americas New York, NY 10036−6710 212−336−2000

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 12 of 39

Amicus Brennan Center for Justice at NYU School of Law
Amicus CATO Institute
Amicus National Immigration Law Center
Amicus NAACP Legal Defense and Educational Fund, Inc.

Email: sazalesin@pbwt.com ATTORNEY TO BE NOTICED
Zachary Kolodin Patterson Belknap Webb Tyler LLP 1133 Avenue of the Americas NEW YORK, NY 10036−6710 United Sta 212−336−2642 Email: zkolodin@pbwt.com TERMINATED: 05/16/2019
represented by Elizabeth Goitein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ramraj Singh Weil, Gotshal and Manges LLP 201 Redwood Shores Parkway 5th Floor Redwood Shores, CA 94065 650−802−3000 Fax: 650−802−3100 Email: david.singh@weil.com ATTORNEY TO BE NOTICED
Joseph Andrew Boyle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Elizabeth Goitein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Ramraj Singh (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu National Immigration Law Center 3450 Wilshire Blvd #108−62 LOS ANGELES, CA 90010 213−639−3900 Fax: 213−639−3911 Email: espiritu@nilc.org ATTORNEY TO BE NOTICED
represented by Michaele Nicole Turnage Young NAACP Legal Defense and Educational Fund, Inc. 700 14th St. NW Suite 600 Washington, DC 20005 202−682−1300 Email: mturnageyoung@naacpldf.org

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 13 of 39

Amicus Former U.S. Government Officials
Amicus Asian Americans Advancing Justice− AAJC
Amicus Asian Americans Advancing Justice − Los Angeles Amicus AALDEF Amicus Black Alliance for Just Immigration Amicus LatinoJustice PRLDEF

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathleen R. Hartnett Cooley LLP 101 California Street San Francisco, CA 94111 (415) 693 2071 Email: khartnett@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harold Hongju Koh Yale Law School Rule of Law Clinic 127 Wall Street New Haven, CT 06520−8215 203−432−4932 Email: harold.koh@ylsclinics.org ATTORNEY TO BE NOTICED
Phillip Michael Spector Messing and Spector LLP 1200 STEUART ST UNIT 2112 Baltimore, MD 21230 202−277−8173 Email: ps@messingspector.com ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu National Immigration Law Center National Immigration Law Center 3450 Wilshire Blvd #108−62 LOS ANGELES, CA 90010 United Sta 213−639−3900 Fax: 213−639−3911 Email: espiritu@nilc.org ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas David Espiritu (See above for address) ATTORNEY TO BE NOTICED

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 14 of 39

Amicus Tohono O'odham Nation
Amicus Iraq and Afghanistan Veterans of America

represented by Joshua Owen Rees Tohono O'odham Nation PO Box 830 Sells, AZ 85634 520−383−3410 Email: joshua.rees@tonation−nsn.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L. Duggan Dentons US LLP 525 Market Street, 26th Floor San Francisco, CA 94105−2708 (415) 882−5000 Fax: (415) 882−0300 Email: jessica.duggan@dentons.com ATTORNEY TO BE NOTICED
Matthew Gordon Adams Dentons US LLP One Market Plaza Spear Tower, 24th Floor San Francisco, CA 94105 (415) 267−4000 Fax: (415) 267−4198 Email: matthew.adams@dentons.com TERMINATED: 01/24/2020
Samuel Franklin Daughety 1900 K St NW Washington, DC 20006−1110 202−408−6427 Email: samuel.daughety@dentons.com PRO HAC VICE ATTORNEY TO BE NOTICED
Suzanne Rebecca Schaeffer Dentons US LLP 1900 K Street NW Washington, DC 20006 202−408−7097 Email: suzanne.schaeffer@dentons.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Mark R. Conrad Conrad & Metlitzky LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94111 (415) 343−7102 Fax: (415) 343−7101 Email: mconrad@conradmetlitzky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay Lyon Rodman Iraq and Afghanistan Veterans of America 20 Tiffany Place Apt 4S New York, NY 10004 United Sta

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 15 of 39

Amicus Federal Courts Scholars
Amicus Andy Barr

917−697−4662 Email: lindsay@iava.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW, Suite 700−1A Washington, DC 20036 (202) 355−9452 Fax: (202) 318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/19/2019 02/19/2019 02/19/2019 02/20/2019
02/20/2019 02/20/2019 02/21/2019

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump ( Filing fee $ 400, receipt number 0971−13103766.). Filed bySierra Club, Southern Border Communities Coalition. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(Wang, Cecillia) (Filed on 2/19/2019) (Entered: 02/19/2019)
2 Proposed Summons. (Wang, Cecillia) (Filed on 2/19/2019) (Entered: 02/19/2019)
3 Certificate of Interested Entities by Sierra Club, Southern Border Communities Coalition (Wang, Cecillia) (Filed on 2/19/2019) (Entered: 02/19/2019)
4 Case assigned to Magistrate Judge Kandis A. Westmore.
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. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 3/6/2019. (jmlS, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
Electronic filing error. A maximum of THREE summons will be issued. Please list all defendants on ONE summons or multiple defendants on THREE summons and re−file in its entirety Re: 2 Proposed Summons filed by Sierra Club, Southern Border Communities Coalition (jmlS, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 5/14/2019. Initial Case Management Conference set for 5/21/2019 01:30 PM. (jmlS, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
6 MOTION for leave to appear in Pro Hac Vice Re: Dror Ladin (Filing fee $310, receipt number 0971−13110184) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Ladin, Dror) (Filed on 2/21/2019) Modified on 2/22/2019 (cjlS, COURT STAFF). (Entered: 02/21/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 16 of 39

02/21/2019 02/21/2019 02/21/2019 02/21/2019 02/21/2019 02/22/2019 02/22/2019 02/22/2019 02/22/2019 02/22/2019 02/22/2019 02/25/2019
02/26/2019 02/27/2019 03/04/2019 03/05/2019

7 MOTION for leave to appear in Pro Hac Vice Re: Hina Shamsi (Filing fee $310, receipt number 0971−13110214) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Shamsi, Hina) (Filed on 2/21/2019) Modified on 2/22/2019 (cjlS, COURT STAFF). (Entered: 02/21/2019)
8 MOTION for leave to appear in Pro Hac Vice Re: Noor Zafar (Filing fee $310, receipt number 0971−13110258) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Zafar, Noor) (Filed on 2/21/2019) Modified on 2/22/2019 (cjlS, COURT STAFF). (Entered: 02/21/2019)
9 MOTION for leave to appear in Pro Hac Vice Re: Omar Jadwat (Filing fee $310, receipt number 0971−13110561) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Jadwat, Omar) (Filed on 2/21/2019) Modified on 2/22/2019 (cjlS, COURT STAFF). (Entered: 02/21/2019)
10 MOTION for leave to appear in Pro Hac Vice Re: David Donatti (Filing fee $310, receipt number 0971−13110632) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Donatti, David) (Filed on 2/21/2019) Modified on 2/22/2019 (cjlS, COURT STAFF). (Entered: 02/21/2019)
11 Proposed Summons. (Wang, Cecillia) (Filed on 2/21/2019) (Entered: 02/21/2019)
12 Summons Issued as to Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (cjlS, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
13 MOTION to Relate Case filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Declaration of Cecillia D. Wang, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order, # 5 Certificate/Proof of Service)(Wang, Cecillia) (Filed on 2/22/2019) (Entered: 02/22/2019)
14 Order by Magistrate Judge Kandis A. Westmore granting 6 Motion for Pro Hac Vice as to Dror Ladin.(ivaS, COURTSTAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
15 Order by Magistrate Judge Kandis A. Westmore granting 7 Motion for Pro Hac Vice as to Hina Shamsi. (ivaS, COURTSTAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
16 Order by Magistrate Judge Kandis A. Westmore granting 9 Motion for Pro Hac Vice as to Omar Jadwat. (ivaS, COURTSTAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
17 Order by Magistrate Judge Kandis A. Westmore granting 10 Motion for Pro Hac Vice as to David Donatti. (ivaS, COURTSTAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
18 CLERK'S NOTICE. The Motion to Related Cases 13 was filed in the wrong case. Please refile the Motion in the lowest case number pursuant to the local rules which is case number 19−cv−0872 HSG. Docket number 13 is terminated and no action will be taken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ivaS, COURTSTAFF) (Filed on 2/25/2019) (Entered: 02/25/2019)
19 Order by Magistrate Judge Kandis A. Westmore denying without prejudice 8 Motion for Pro Hac Vice for Noor Zafar.(ivaS, COURTSTAFF) (Filed on 2/26/2019) (Entered: 02/26/2019)
20 SUMMONS Returned Executed by Sierra Club, Southern Border Communities Coalition. All Defendants. (Ladin, Dror) (Filed on 2/27/2019) (Entered: 02/27/2019)
21 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13110258.) Filing fee previously paid on 2/21/2019 filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Zafar, Noor) (Filed on 3/4/2019) (Entered: 03/04/2019)
22 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Sierra Club, Southern Border Communities Coalition.. (Ladin, Dror) (Filed on 3/5/2019) (Entered: 03/05/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 17 of 39

03/06/2019 03/06/2019 03/06/2019 03/07/2019
03/18/2019 04/04/2019
04/04/2019 04/04/2019
04/04/2019 04/04/2019 04/04/2019 04/04/2019 04/04/2019 04/04/2019

23 ORDER by Magistrate Judge Kandis A. Westmore granting 21 Motion for Pro Hac Vice as to Noor Zafar. (ivaS, COURTSTAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
24 ORDER RELATING CASE TO 19−cv−0872−HSG. Signed by Judge Haywood S. Gilliam, Jr. on 3/6/2019. (ndrS, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
Case Reassigned to Judge Haywood S Gilliam, Jr. Magistrate Judge Kandis A. Westmore no longer assigned to the case. (ajsS, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
25 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 21, 2019, 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 14, 2019. 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 4:19−cv−00892−HSG. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 3/7/2019) (Entered: 03/07/2019)
26 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants. Filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Exhibit A, # 2 Certificate/Proof of Service)(Ladin, Dror) (Filed on 3/18/2019) Modified on 3/19/2019 (jjbS, COURT STAFF). (Entered: 03/18/2019)
27 **RE−FILED AS DOCKET NO. 28 ** MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13230738.) Filing fee previously paid on 04/04/2019 filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Wang, Cecillia) (Filed on 4/4/2019) Modified on 4/5/2019 (jjbS, COURT STAFF). (Entered: 04/04/2019)
28 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13230738.) Filing fee previously paid on 04/04/2019 filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Hafetz, Jonathan) (Filed on 4/4/2019) (Entered: 04/04/2019)
29 MOTION for Preliminary Injunction filed by Sierra Club, Southern Border Communities Coalition. Motion Hearing set for 5/9/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 4/18/2019. Replies due by 4/25/2019. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
30 Declaration of Albert Del Val in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
31 Declaration of Amanda Munro in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
32 Declaration of Vicki B. Gaubeca in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
33 Declaration of Christina Houle in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
34 Declaration of Kevin Bixby in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
35 Declaration of Elizabeth J. Walsh in Support of 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 18 of 39

04/04/2019
04/05/2019
04/05/2019
04/09/2019 04/09/2019
04/09/2019 04/10/2019 04/10/2019 04/10/2019
04/11/2019 04/12/2019 04/12/2019

36 Request for Judicial Notice re 29 MOTION for Preliminary Injunction filed bySierra Club, Southern Border Communities Coalition. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Related document(s) 29 ) (Ladin, Dror) (Filed on 4/4/2019) (Entered: 04/04/2019)
Electronic filing error. REMINDER TO COUNSEL: In the future, please attach all supporting documents to the Motion. ALSO, the proposed order is missing suffix to Judge&#03 9;s Name. Counsel need not re−file document, but should reference Hon. Judge Haywood S. Gilliam, Jr. in future filings if they wish to include reference to Judge's full assignment reference. Re: 33 Declaration in Support, 34 Declaration in Support, 31 Declaration in Support, 30 Declaration in Support, 35 Declaration in Support, 32 Declaration in Support, 29 MOTION for Preliminary Injunction. (jjbS, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)
37 CLERK'S NOTICE. Notice is hereby given that counsel must re−notice not re−file the 29 motion for preliminary injunction. Hearing date of May 9, 2019, is vacated. The briefing schedule remains in effect. Counsel is directed to check the Court's scheduling notes before re−noticing the motion for a new hearing date. May 9th was not the Court's next available hearing date when this motion was e−filed. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)
38 ORDER by Judge Haywood S. Gilliam, Jr. Granting 28 Motion for Pro Hac Vice as to Hafetz, Jonathan. (ndrS, COURT STAFF) (Filed on 4/9/2019) (Entered: 04/09/2019)
39 ORDER by Hon Haywood S. Gilliam, Jr. SETTING the following briefing and hearing schedule for Plaintiffs' 29 Motion for Preliminary Injunction: responses are due by April 25, 2019; replies are due by May 2, 2019; a hearing is scheduled for May 17, 2019 at 10:00 a.m. Plaintiffs' counsel is directed to serve Defendants with this order. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc3S, COURT STAFF) (Filed on 4/9/2019) (Entered: 04/09/2019)
Set Deadlines/Hearing as to 29 MOTION for Preliminary Injunction, See Docket No. 39 : Responses due by 4/25/2019; Replies due by 5/2/2019; and Motion Hearing set for 5/17/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 4/9/2019) (Entered: 04/10/2019)
40 CERTIFICATE OF SERVICE by Sierra Club, Southern Border Communities Coalition re 39 Order,, (Ladin, Dror) (Filed on 4/10/2019) (Entered: 04/10/2019)
41 NOTICE of Appearance by Andrew Irwin Warden on behalf of Defendants (Warden, Andrew) (Filed on 4/10/2019) (Entered: 04/10/2019)
42 STIPULATION WITH PROPOSED ORDER For Order Extending Page Limits For Preliminary Injunction Briefs, Staying Defendants' Response to the Amended Complaints, and Staying Initial Case Management Activity filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, Southern Border Communities Coalition, and Sierra Club. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 4/10/2019) Modified on 4/11/2019 (jjbS, COURT STAFF). (Entered: 04/10/2019)
43 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 67 in case 4:19−cv−00872−HSG and 42 in case 4:19−cv−00892−HSG) Stipulation For Order Extending Page Limits For Preliminary Injunction Briefs, Staying Defendants' Response to the Amended Complaints, and Staying Initial Case Management Activity. (ndrS, COURT STAFF) (Filed on 4/11/2019) (Entered: 04/11/2019)
44 NOTICE of Appearance by Douglas N. Letter (Letter, Douglas) (Filed on 4/12/2019) (Entered: 04/12/2019)
45 Consent MOTION to File Amicus Curiae Brief filed by United States House of Representatives. Responses due by 4/26/2019. Replies due by 5/3/2019. (Attachments: # 1 Proposed Order, # 2 Exhibit Amicus Brief)(Letter, Douglas) (Filed on 4/12/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 19 of 39

04/15/2019 04/15/2019 04/22/2019 04/22/2019 04/23/2019 04/23/2019 04/23/2019 04/23/2019 04/23/2019 04/23/2019 04/23/2019
04/23/2019
04/23/2019

(Entered: 04/12/2019)
46 ORDER by Judge Haywood S. Gilliam, Jr. Granting 45 Consent Motion to File Amicus Curiae Brief. Houses counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 4/15/2019) (Entered: 04/15/2019)
47 Brief of Amicus Curiae filed byUnited States House of Representatives. (Letter, Douglas) (Filed on 4/15/2019) (Entered: 04/15/2019)
48 Joint ADMINISTRATIVE MOTION RELIEF FROM AUTOMATIC REFERRAL TO THE ADR MULTI−OPTION PROGRAM re 5 Initial Case Management Scheduling Order with ADR Deadlines filed by Sierra Club, Southern Border Communities Coalition. Responses due by 4/26/2019. (Attachments: # 1 Proposed Order)(Ladin, Dror) (Filed on 4/22/2019) (Entered: 04/22/2019)
49 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 74 in case 4:19−cv−00872−HSG and 48 in case 4:19−cv−00892−HSG) Joint Administrative Motion for Relief from Automatic Referral to the ADR Multi−Option Program. (ndrS, COURT STAFF) (Filed on 4/22/2019) (Entered: 04/22/2019)
50 MOTION for leave to appear in Pro Hac Vice representing Amicus Brennan Center for Justice ( Filing fee $ 310, receipt number 0971−13281381.) filed by Brennan Center for Justice. (Boyle, Joseph) (Filed on 4/23/2019) (Entered: 04/23/2019)
51 MOTION for leave to appear in Pro Hac Vice for Elizabeth Goitein representing Amicus Brennan Center for Justice ( Filing fee $ 310, receipt number 0971−13281393.) filed by Brennan Center for Justice. (Boyle, Joseph) (Filed on 4/23/2019) (Entered: 04/23/2019)
52 NOTICE of Appearance by David W. Evans. (Evans, David) (Filed on 4/23/2019) Modified on 4/24/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
53 **RE−FILED AT DOCKET NO. 61 ** Amicus Curiae APPEARANCE entered by David W. Evans on behalf of John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Evans, David) (Filed on 4/23/2019) Modified on 4/26/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
54 **RE−FILED AT DOCKET NO. 62 ** Amicus Curiae APPEARANCE entered by David W. Evans on behalf of John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Evans, David) (Filed on 4/23/2019) Modified on 4/26/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
55 **RE−FILED AT DOCKET NO. 63 ** Amicus Curiae APPEARANCE entered by David W. Evans on behalf of John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Evans, David) (Filed on 4/23/2019) Modified on 4/26/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
56 **DISREGARD, RE−FILED AS DOCKET NO. 59 ** MOTION for Preliminary Injunction Consent Motion For Leave filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. Motion Hearing set for 5/17/2019 10:00 AM before Judge Haywood S Gilliam Jr.. Responses due by 5/7/2019. Replies due by 5/14/2019. (Evans, David) (Filed on 4/23/2019) Modified on 4/24/2019 (jjbS, COURT STAFF). Modified on 4/24/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
57 **DISRGARD, RE−FILED AS DOCKET NUMBER 59 ** EXHIBITS re 56 MOTION for Preliminary Injunction Consent Motion For Leave Amicus Memorandum In Support of Plaintiffs' Motion for Prelimary Injunction filed byJohn Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Related document(s) 56 ) (Evans, David) (Filed on 4/23/2019) Modified on 4/24/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
58 **DISREGARD, RE−FILED AS DOCKET NO. 59 ** Proposed Order re 56 MOTION for Preliminary Injunction Consent Motion For Leave Proposed Order

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 20 of 39

04/24/2019
04/24/2019
04/24/2019 04/25/2019 04/25/2019 04/25/2019 04/25/2019

Granting Consent Motion for Leave to File Memorandum of Christopher Shays, et al. by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Evans, David) (Filed on 4/23/2019) Modified on 4/24/2019 (jjbS, COURT STAFF). (Entered: 04/23/2019)
Electronic filing error. Incorrect event used. [err101]. Correct Event is "Motion for Leave to Appear Pro Hac Vice." Event can be found under Civil Events > Motions a nd Related Filings > Motions − General > Pro Hac Vice. The attorney requesting to appear pro hac vice must also file their own Motion using their own ECF login. Please re−file in its entirety. Re: 55 Amicus Curiae Appearance filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III, 53 Amicus Curiae Appearance filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III, 54 Amicus Curiae Appearance filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III (jjbS, COURT STAFF) (Filed on 4/24/2019) (Entered: 04/24/2019)
Electronic filing error. Incorrect event used. [err101]. Correct event is "Motion for Leave to File Document." Event can be found under Civil Events > Motions and Rel ated Filings > Motions − General > Leave to File Document. ALSO, please attach all supporting documents and proposed orders to the Motion.
Please re−file the motion using the correct event with all supporting documents as attachments in its entirety. Re: 57 Exhibits, filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III, 56 MOTION for Preliminary Injunction Consent Motion For Leave filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III, 58 Proposed Order, filed by Stanley Twardy, Carter Phillips, Peter Keisler, Christine Todd Whitman, Richard Bernstein, Christopher Shays, John Bellinger, III (jjbS, COURT STAFF) (Filed on 4/24/2019) (Entered: 04/24/2019)
59 Consent MOTION for Leave to File Memorandum in Support of 29 Motion for a Preliminary Injunction CORRECTION OF DOCKET # 56 , 57 , 58 filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Proposed Amicus Memorandum, # 2 Proposed Order)(Evans, David) (Filed on 4/24/2019) Modified on 4/24/2019 (jjbS, COURT STAFF). (Entered: 04/24/2019)
60 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 84 in case 4:19−cv−00872−HSG and 59 in case 4:19−cv−00892−HSG) MOTION for Leave to File Memorandum in Support of 59 Motion for Preliminary Injunction. Counsel is directed to file the amici curiae brief of Christopher Shays et al. on the docket in this matter. (ndrS, COURT STAFF) (Filed on 4/25/2019) (Entered: 04/25/2019)
61 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13290346.) filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Exhibit Certificate of Good Standing)(Mancino, Richard) (Filed on 4/25/2019) (Entered: 04/25/2019)
62 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13290423.) filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Exhibit Certificate of Good Standing)(Hussein, Shaimaa) (Filed on 4/25/2019) (Entered: 04/25/2019)
63 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13290488.) filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Exhibit Certificate of Good Standing)(Dollan, Matthew) (Filed on 4/25/2019) (Entered: 04/25/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 21 of 39

04/25/2019 04/30/2019
05/01/2019 05/01/2019
05/02/2019
05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019

64 OPPOSITION/RESPONSE (re 29 MOTION for Preliminary Injunction ) filed bySteven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit Index)(Westmoreland, Rachael) (Filed on 4/25/2019) (Entered: 04/25/2019)
65 Amicus Brief filed byJohn Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Exhibit 1 to Amicus Brief of Christopher Shays, Christine Todd Whitman, Peter Keisler, Carter Phillips, John Bellinger III, Stanley Twardy and Richard Bernstein as Amici Curiae)(Evans, David) (Filed on 4/30/2019) Modified on 5/1/2019 (jjbS, COURT STAFF). Modified on 5/1/2019 (jjbS, COURT STAFF). (Entered: 04/30/2019)
66 Consent MOTION for Leave to File Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by Amici Curiae Former Members of Congress. (Attachments: # 1 Proposed Order, # 2 Amici Curiae Brief)(Winthrop, Douglas) (Filed on 5/1/2019) (Entered: 05/01/2019)
67 **Duplicate Filing, See Docket Nos. 51 and 82 *** MOTION for leave to appear in Pro Hac Vice representing Amicus Brennan Center for Justice ( Filing fee $ 310, receipt number 0971−13281393.) Filing fee previously paid on April 23, 2019 filed by Brennan Center for Justice. (Attachments: # 1 Certificate of Good Standing)(Goitein, Elizabeth) (Filed on 5/1/2019) Modified on 5/2/2019 (ndrS, COURT STAFF). (Entered: 05/01/2019)
68 Consent MOTION to File Amicus Curiae Brief in Support of 29 Motion for Preliminary Injunction filed by Erwin Chemerinsky, Michael C. Dorf, David A. Strauss, Stephen I. Vladeck. Responses due by 5/16/2019. Replies due by 5/23/2019. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
69 ORDER by Judge Haywood S. Gilliam, Jr. Granting Consent (Docket Nos. 105 in case 4:19−cv−00872−HSG; and 68 in case 4:19−cv−00892−HSG) MOTION to File Amicus Curiae Brief. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
70 ORDER by Judge Haywood S. Gilliam, Jr. Granting Consent 66 MOTION for Leave to File Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
71 NOTICE of Appearance by Gary T. Lafayette (Lafayette, Gary) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
72 NOTICE of Appearance by Brian H. Chun (Chun, Brian) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
73 Consent MOTION for Leave to File Memorandum of 58 Religious Organizations as Amici Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction filed by 58 Religious Organizations. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Chun, Brian) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
74 ** RE−FILED AS DOCKET NO. 96 ** MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311888.) filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Mangi, Adeel) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
75 **RE−FILED AS DOCKET NO. 97 ** MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311915.) filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Zalesin, Steven) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
76 ** RE−FILED AT DOCKET NO. 98 ** MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311937.) filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Kolodin, Zachary)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 22 of 39

05/02/2019
05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019
05/02/2019
05/02/2019

(Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
77 **RE−FILED AT DOCKET NO. 99 ** MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311974.) filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Badat, Mohammed) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
78 NOTICE of Appearance by David Ramraj Singh for Amici Curiae Brennan Center for Justice at NYU School of Law and CATO Institute (Singh, David) (Filed on 5/2/2019) (Entered: 05/02/2019)
79 MOTION for Leave to File Brief as Amici Curiae filed by National Immigration Law Center, et al.. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Espiritu, Nicholas) (Filed on 5/2/2019) (Entered: 05/02/2019)
80 MOTION for Leave to Present Argument in the Preliminary Injunction Hearing filed by United States House of Representatives. Responses due by 5/16/2019. Replies due by 5/23/2019. (Attachments: # 1 Proposed Order)(Letter, Douglas) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
81 ORDER by Judge Haywood S. Gilliam, Jr. Granting 50 Motion for Pro Hac Vice as to Boyle, Joseph. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
82 ORDER by Judge Haywood S. Gilliam, Jr. Granting 51 Motion for Pro Hac Vice for Elizabeth Goitein representing Amicus Brennan Center for Justice.(ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
83 ORDER by Judge Haywood S. Gilliam, Jr. Granting 61 Amended Motion for Pro Hac Vice as to Mancino, Richard. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
84 ORDER by Judge Haywood S. Gilliam, Jr. Granting 62 Motion for Pro Hac Vice as to Hussein, Shaimaa. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
85 ORDER by Judge Haywood S. Gilliam, Jr. Granting 63 Amended Motion for Pro Hac Vice as to Dollan, Matthew. (ndrS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
86 NOTICE of Appearance by Michaele Nicole Turnage Young on behalf of amicus curiae NAACP Legal Defense and Educational Fund, Inc. (Turnage Young, Michaele) (Filed on 5/2/2019) (Entered: 05/02/2019)
87 **DISREGARD, RE−FILED AT DOCKET NO. 90 ** Consent MOTION for Leave to File Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plaintiffs' Motion for Preliminary Injunction filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Turnage Young, Michaele) (Filed on 5/2/2019) Modified on 5/2/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
88 MOTION for Leave to File Memorandum as Amici Curriae in Support of Motion for Preliminary Injunction filed by Brennan Center for Justice at NYU School of Law, CATO Institute. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Goitein, Elizabeth) (Filed on 5/2/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/02/2019)
89 ORDER by Hon. Haywood S. Gilliam, Jr., GRANTING the 80 motion for leave to present argument, in light of the unique institutional interests articulated by amicus curiae United States House of Representatives. No party arguing at the hearing will be permitted to present PowerPoint or similar visual presentations. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc3S, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 23 of 39

05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/02/2019 05/03/2019 05/03/2019 05/03/2019 05/03/2019 05/03/2019 05/03/2019 05/06/2019 05/07/2019 05/07/2019

90 Consent MOTION for Leave to File Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plaintiffs' Motion for Preliminary Injunction CORRECTION OF DOCKET # 87 filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Turnage Young, Michaele) (Filed on 5/2/2019) (Entered: 05/02/2019)
91 REPLY (re 29 MOTION for Preliminary Injunction ) filed bySierra Club, Southern Border Communities Coalition. (Attachments: # 1 Supplemental Declaration of Christina Patino Houle, # 2 Supplemental Declaration of Kevin Bixby)(Ladin, Dror) (Filed on 5/2/2019) (Entered: 05/02/2019)
92 MOTION for leave to appear in Pro Hac Vice re: Harold Hongju Koh ( Filing fee $ 310, receipt number 0971−13314050.) filed by Former U.S. Government Officials. (Attachments: # 1 Good Standing Certificate)(Koh, Harold) (Filed on 5/2/2019) (Entered: 05/02/2019)
93 MOTION for leave to appear in Pro Hac Vice re: Phillip M. Spector ( Filing fee $ 310, receipt number 0971−13314057.) filed by Former U.S. Government Officials. (Attachments: # 1 Good Standing Certificate)(Spector, Phillip) (Filed on 5/2/2019) (Entered: 05/02/2019)
94 Consent MOTION for Leave to File Brief of Former U.S. Government Officials as Amici Curiae in Support of Plaintiffs Motion for a Preliminary Injunction filed by Former U.S. Government Officials. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Hartnett, Kathleen) (Filed on 5/2/2019) (Entered: 05/02/2019)
95 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 103 in case 4:19−cv−00872−HSG; 79 in case 4:19−cv−00892−HSG) Motion for Leave to File as Amici Curiae. (ndrS, COURT STAFF) (Filed on 5/3/2019) (Entered: 05/03/2019)
96 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311888.) Filing fee previously paid on 05/02/2019 filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Mangi, Adeel) (Filed on 5/3/2019) (Entered: 05/03/2019)
97 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311915.) Filing fee previously paid on 05/02/2019 filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Zalesin, Steven) (Filed on 5/3/2019) (Entered: 05/03/2019)
98 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311937.) Filing fee previously paid on 05/02/2019 filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Kolodin, Zachary) (Filed on 5/3/2019) (Entered: 05/03/2019)
99 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13311974.) Filing fee previously paid on 05/02/2019 filed by 58 Religious Organizations. (Attachments: # 1 Certificate of Good Standing)(Badat, Mohammed) (Filed on 5/3/2019) (Entered: 05/03/2019)
100 Amicus Brief filed byNational Immigration Law Center, et al.. (Espiritu, Nicholas) (Filed on 5/3/2019) Modified on 5/3/2019 (jjbS, COURT STAFF). (Entered: 05/03/2019)
101 MOTION to Consolidate Docket Entries for "Brennan Center for Justice" and "Brennan Center for Justice at NYU School of Law" filed by Brennan Center for Justice at NYU School of Law. Responses due by 5/20/2019. Replies due by 5/28/2019. (Attachments: # 1 Proposed Order)(Goitein, Elizabeth) (Filed on 5/6/2019) (Entered: 05/06/2019)
102 ORDER by Judge Haywood S. Gilliam, Jr. Granting 101 Motion to Consolidate Docket Entries for "Brennan Center for Justice" and "Brennan Center for Justice at NYU School of Law". (ndrS, COURT STAFF) (Filed on 5/7/2019) (Entered: 05/07/2019)
103 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13325615.) filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 24 of 39

05/08/2019 05/08/2019 05/08/2019 05/09/2019 05/09/2019 05/13/2019 05/13/2019 05/13/2019
05/13/2019
05/13/2019 05/13/2019 05/13/2019 05/13/2019

Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. (Attachments: # 1 Exhibit Certificate of Good Standing)(Bernstein, Richard) (Filed on 5/7/2019) (Entered: 05/07/2019)
104 Brief filed byNational Immigration Law Center, Asian Americans Advancing Justice− AAJC, Asian Americans Advancing Justice − Los Angeles, AALDEF, Black Alliance for Just Immigration, LatinoJustice PRLDEF. (Espiritu, Nicholas) (Filed on 5/8/2019) (Entered: 05/08/2019)
105 MOTION to Withdraw as Attorney filed by John Bellinger, III, Richard Bernstein, Peter Keisler, Carter Phillips, Christopher Shays, Stanley Twardy, Christine Todd Whitman. Responses due by 5/22/2019. Replies due by 5/29/2019. (Attachments: # 1 Proposed Order)(Dollan, Matthew) (Filed on 5/8/2019) (Entered: 05/08/2019)
106 Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed byAmici Curiae Former Members of Congress. (Winthrop, Douglas) (Filed on 5/8/2019) (Entered: 05/08/2019)
107 Brief of Amici Curiae Federal Courts Scholars in Support of Plaintiffs' Motion for Preliminary Injunction filed byErwin Chemerinsky, Michael C. Dorf, David A. Strauss, Stephen I. Vladeck. (Wydra, Elizabeth) (Filed on 5/9/2019) (Entered: 05/09/2019)
108 ORDER by Judge Haywood S. Gilliam, Jr. Granting 105 Motion to Withdraw as Attorney. (ndrS, COURT STAFF) (Filed on 5/9/2019) (Entered: 05/09/2019)
109 ORDER by Judge Haywood S. Gilliam, Jr. Granting 73 Consent MOTION for Leave to File Memorandum of 58 Religious Organizations as Amici Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction. (ndrS, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
110 ORDER by Judge Haywood S. Gilliam, Jr. Granting 88 MOTION for Leave to File Memorandum as Amici Curriae in Support of Motion for Preliminary Injunction. Counsel is directed to file the brief on the docket. (ndrS, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
111 ORDER by Judge Haywood S. Gilliam, Jr. Granting 90 Consent MOTION for Leave to File Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plaintiffs' Motion for Preliminary Injunction. Counsel is directed to file the brief on the docket. (ndrS, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
112 ORDER by Judge Haywood S. Gilliam, Jr. Granting 94 Consent MOTION for Leave to File Brief of Former U.S. Government Officials as Amici Curiae in Support of Plaintiffs Motion for a Preliminary Injunction. Counsel is directed to file the brief on the docket. (ndrS, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
113 Brief of 58 Religious Organizations as Amici Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction] filed by58 Religious Organizations. (Lafayette, Gary) (Filed on 5/13/2019) Modified on 5/14/2019 (cpS, COURT STAFF). (Entered: 05/13/2019)
114 Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. in Support of Plaintiffs' Motion for Preliminary Injunction filed byNAACP Legal Defense and Educational Fund, Inc.. (Turnage Young, Michaele) (Filed on 5/13/2019) (Entered: 05/13/2019)
115 Brief of the Brennan Center for Justice at NYU School of Law and the CATO Institute as Amici Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction filed byBrennan Center for Justice at NYU School of Law, CATO Institute. (Goitein, Elizabeth) (Filed on 5/13/2019) (Entered: 05/13/2019)
116 ORDER by Hon. Haywood S. Gilliam, Jr., DIRECTING DEFENDANTS TO SUBMIT STATEMENT. (hsglc3S, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 25 of 39

05/13/2019
05/13/2019
05/14/2019 05/14/2019 05/14/2019
05/14/2019 05/14/2019 05/14/2019 05/14/2019 05/14/2019 05/14/2019 05/14/2019 05/15/2019 05/15/2019 05/15/2019 05/16/2019

117 ORDER by Hon. Haywood S. Gilliam, Jr., ADVISING Defendants that the Court's 116 requested statement should only include updated factual information, and should not include further legal argument. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc3S, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
118 Second DECLARATION of Kenneth Rapuano (May 13, 2019) filed bySteven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Exhibit Second Declaration of Kenneth Rapuano (dated May 13, 2019))(Warden, Andrew) (Filed on 5/13/2019) Modified on 5/14/2019 (cpS, COURT STAFF). (Entered: 05/13/2019)
119 NOTICE of Appearance by Eric Grant on behalf of Defendants (Grant, Eric) (Filed on 5/14/2019) (Entered: 05/14/2019)
120 Brief of Former U.S. Government Officials as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed byFormer U.S. Government Officials. (Hartnett, Kathleen) (Filed on 5/14/2019) (Entered: 05/14/2019)
121 CLERK'S NOTICE. Notice is hereby given that any member of the press wishing to listen by telephone to the motions hearings scheduled for May 17th shall contact CourtCall at (866) 582−6878 to make arrangements to do so. No one is permitted to record the hearing. (This is a text−only entry generated by the court. There is no document associated with this entry.)(ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
122 ORDER by Judge Haywood S. Gilliam, Jr. Granting 92 Motion for Pro Hac Vice re: Harold Hongju Koh. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
123 ORDER by Judge Haywood S. Gilliam, Jr. Granting 93 Motion for Pro Hac Vice re: Phillip M. Spector. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
124 ORDER by Judge Haywood S. Gilliam, Jr. Granting Amended 96 Motion for Pro Hac Vice as to Mangi, Adeel. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
125 ORDER by Judge Haywood S. Gilliam, Jr. Granting Amended 97 Motion for Pro Hac Vice as to Zalesin, Steven. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
126 ORDER by Judge Haywood S. Gilliam, Jr. Granting 98 Motion for Pro Hac Vice as to Kolodin, Zachary.(ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
127 ORDER by Judge Haywood S. Gilliam, Jr. Granting Amended 99 Motion for Pro Hac Vice as to Badat, Mohammed. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
128 ORDER by Judge Haywood S. Gilliam, Jr. Granting 103 Motion for Pro Hac Vice as to Bernstein, Richard. (ndrS, COURT STAFF) (Filed on 5/14/2019) (Entered: 05/14/2019)
129 MOTION to Withdraw as Attorney (Zachary Kolodin) filed by 58 Religious Organizations. Responses due by 5/29/2019. Replies due by 6/5/2019. (Attachments: # 1 Proposed Order)(Kolodin, Zachary) (Filed on 5/15/2019) Modified on 5/16/2019 (cpS, COURT STAFF). (Entered: 05/15/2019)
130 NOTICE of Appearance by James Mahoney Burnham (Burnham, James) (Filed on 5/15/2019) (Entered: 05/15/2019)
131 Response to the Court's May 13, 2019 Order 116 by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Filed on 5/15/2019) Modified on 5/16/2019 (cpS, COURT STAFF). (Entered: 05/15/2019)
132 NOTICE of Appearance by Howard Michael Garfield (Garfield, Howard) (Filed on 5/16/2019) (Entered: 05/16/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 26 of 39

05/16/2019 05/17/2019
05/19/2019 05/20/2019 05/20/2019 05/20/2019
05/21/2019 05/22/2019 05/23/2019 05/23/2019 05/23/2019 05/23/2019

133 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 148 in case 4:19−cv−00872−HSG and 129 in case 4:19−cv−00892−HSG ) Motion to Withdraw as Attorney. (ndrS, COURT STAFF) (Filed on 5/16/2019) (Entered: 05/16/2019)
134 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Motion Hearing held on 5/17/2019. Total Time in Court: 2 hours and 40 minutes. Court Reporter: Pamela Batalo−Hebel. Plaintiff Attorney: Dror Ladin; Lee Sherman; Janelle Smith; Henry Kantor and Douglas Letter. Defendant Attorney: Andrew Warden; Eric Grant and James Burnham. Plaintiffs motions for preliminary injunction (docket nos. 59 in case no. 19− cv−872−HSG and 29 in case no. 19−cv−892−HSG) are argued and submitted by the parties and taken under submission by the Court. Parties are in agreement that the Court should rule on the motions for preliminary injunction without regard to the El Centro Sector and Tucson Sector Projects. Parties are directed to meet and confer and e−file a stipulation and proposed order setting briefing schedule regarding these projects. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 5/17/2019) (Entered: 05/17/2019)
135 TRANSCRIPT ORDER for proceedings held on May 17, 2019 before Judge Haywood S Gilliam, Jr by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, for Court Reporter Pam Batalo. (Warden, Andrew) (Filed on 5/19/2019) (Entered: 05/19/2019)
136 TRANSCRIPT ORDER for proceedings held on 05/17/2019 before Judge Haywood S Gilliam, Jr by Amici Curiae Former Members of Congress, for Court Reporter Pam Batalo. (Winthrop, Douglas) (Filed on 5/20/2019) (Entered: 05/20/2019)
137 TRANSCRIPT ORDER for proceedings held on May 17, 2019 before Judge Haywood S Gilliam, Jr by United States House of Representatives, for Court Reporter Pam Batalo. (Letter, Douglas) (Filed on 5/20/2019) (Entered: 05/20/2019)
138 Transcript of Proceedings held on 05/17/19, before Judge Gilliam. Court Reporter Pamela Batalo Hebel, telephone number 626−688−7509; pamela_batalo−hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (156 in 4:19−cv−00872−HSG) Transcript Order, (137 in 4:19−cv−00892−HSG) Transcript Order, (158 in 4:19−cv−00872−HSG) Transcript Order ) Redaction Request due 6/10/2019. Redacted Transcript Deadline set for 6/20/2019. Release of Transcript Restriction set for 8/19/2019. (Batalo, Pam) (Filed on 5/20/2019) (Entered: 05/20/2019)
139 Letter from Douglas N. Letter, General Counsel, U.S. House of Representatives . (Letter, Douglas) (Filed on 5/21/2019) (Entered: 05/21/2019)
140 STIPULATION WITH PROPOSED ORDER For Supplemental Briefing Schedule For El Centro and Tucson Border Barrier Projects filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 5/22/2019) (Entered: 05/22/2019)
141 TRANSCRIPT ORDER for proceedings held on 05/17/2019 before Judge Haywood S Gilliam, Jr by Sierra Club, Southern Border Communities Coalition, for Court Reporter Pam Batalo. (Ladin, Dror) (Filed on 5/23/2019) (Entered: 05/23/2019)
142 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 162 in case 4:19−cv−00872−HSG and 140 in case 4:19−cv−00892−HSG) Stipulation For Supplemental Briefing Schedule For El Centro and Tucson Border Barrier Projects. (ndrS, COURT STAFF) (Filed on 5/23/2019) (Entered: 05/23/2019)
Set Deadlines/Hearing: Motions due by 5/29/2019; Responses due by 6/10/2019 and Replies due by 6/13/2019. (ndrS, COURT STAFF) (Filed on 5/23/2019) (Entered: 05/23/2019)
143 TRANSCRIPT ORDER for proceedings held on 05/17/2019 before Judge Haywood S Gilliam, Jr for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 5/23/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 27 of 39

05/24/2019 05/24/2019 05/29/2019 05/29/2019
05/29/2019 05/29/2019 05/29/2019 05/29/2019
05/30/2019 05/30/2019 05/30/2019 05/31/2019 05/31/2019

(Entered: 05/23/2019)
144 ORDER by Hon. Haywood S. Gilliam, Jr., GRANTING IN PART and DENYING IN PART 29 Plaintiffs Motion for Preliminary Injunction, and SETTING case management conference for June 5, 2019 at 2:00 p.m. Case management statement is due by May 31, 2019.(hsglc3S, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/24/2019)
Set Deadline/Hearing: Case Management Statement due by 5/31/2019 and Further Case Management Conference set for 6/5/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/28/2019)
145 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Appeal of Order on Motion for Preliminary Injunction, 144 (Appeal fee FEE WAIVED.) (Warden, Andrew) (Filed on 5/29/2019) (Entered: 05/29/2019)
146 MOTION to Stay re 144 Order on Motion for Preliminary Injunction, Pending Appeal filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Responses due by 6/12/2019. Replies due by 6/19/2019. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Proposed Order)(Warden, Andrew) (Filed on 5/29/2019) Modified on 5/30/2019 (cpS, COURT STAFF). (Entered: 05/29/2019)
147 MOTION to Shorten Time To Hear Defendants' Motion To Stay Preliminary Injunction Pending Appeal filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Declaration, # 2 Proposed Order)(Warden, Andrew) (Filed on 5/29/2019) (Entered: 05/29/2019)
148 USCA Case Number 19−16102 Ninth Circuit Court of Appeals for 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (cjlS, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
149 MOTION to Appear by Telephone at Case Management Conference filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (Attachments: # 1 Proposed Order)(Westmoreland, Rachael) (Filed on 5/29/2019) (Entered: 05/29/2019)
150 MOTION for Supplemental Preliminary Injunction filed by Sierra Club, Southern Border Communities Coalition. Responses due by 6/10/2019. Replies due by 6/13/2019. (Attachments: # 1 Declaration of Gayle G. Hartmann, # 2 Declaration of Ralph Hudson, # 3 Declaration of Kevin Arthur Dahl, # 4 Declaration of Bill Broyles, # 5 Declaration of Patricia Gerrodette, # 6 Declaration of Margaret Case, # 7 Declaration of Carmina Ramirez, # 8 Declaration of Cyndi C. Tuell, # 9 Declaration of Roy Armenta Sr., # 10 Proposed Order)(Ladin, Dror) (Filed on 5/29/2019) Modified on 5/30/2019 (cpS, COURT STAFF). Modified on 5/30/2019 (cpS, COURT STAFF). (Entered: 05/29/2019)
***Hearing dates of 10/3/2019 Re Docket Nos. 167 in case no. 19−cv−00872−hsg and 146 and 150 in case no. 19−cv−00892−HSG are terminated because counsel set the date when filing the motions in ECF but failed to actual notice the motions for that date.*** (ndrS, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
151 ORDER by Judge Haywood S. Gilliam, Jr. Granting 149 Motion to Appear by Telephone at Case Management Conference. (ndrS, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
152 ORDER by Judge Haywood S. Gilliam, Jr. DENYING 146 MOTION TO STAY PRELIMINARY INJUNCTION( 147 Motion to Shorten Time is terminated as moot). (ndrS, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)
153 TRANSCRIPT ORDER for proceedings held on 05/17/2019 before Judge Haywood S Gilliam, Jr for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 5/31/2019) (Entered: 05/31/2019)
154 JOINT CASE MANAGEMENT STATEMENT filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, Sierra Club, Southern Border Communities Coalition. (Warden, Andrew) (Filed on 5/31/2019) Modified on

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 28 of 39

06/03/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019
06/07/2019 06/07/2019 06/07/2019
06/11/2019

6/3/2019 (cpS, COURT STAFF). (Entered: 05/31/2019)
155 ORDER of USCA as to 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 6/3/2019) (Entered: 06/04/2019)
156 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13408180.) filed by Tohono O'odham Nation. (Attachments: # 1 Certificate of Good Standing)(Daughety, Samuel) (Filed on 6/5/2019) (Entered: 06/05/2019)
157 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13408200.) filed by Tohono O'odham Nation. (Attachments: # 1 Certificate of Good Standing)(Schaeffer, Suzanne) (Filed on 6/5/2019) (Entered: 06/05/2019)
158 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13408214.) filed by Tohono O'odham Nation. (Attachments: # 1 Certificate of Good Standing)(Rees, Joshua) (Filed on 6/5/2019) (Entered: 06/05/2019)
159 Consent MOTION to File Amicus Curiae Brief filed by Tohono O'odham Nation. Responses due by 6/19/2019. Replies due by 6/26/2019. (Attachments: # 1 Exhibit Amicus Brief, # 2 Proposed Order)(Adams, Matthew) (Filed on 6/5/2019) (Entered: 06/05/2019)
160 CERTIFICATE OF SERVICE by Tohono O'odham Nation re 159 Consent MOTION to File Amicus Curiae Brief (Adams, Matthew) (Filed on 6/5/2019) (Entered: 06/05/2019)
161 NOTICE of Appearance by Matthew Gordon Adams (Adams, Matthew) (Filed on 6/5/2019) (Entered: 06/05/2019)
162 ORDER of USCA: Oral argument on appellants' emergency motion for a stay pending appeal is set for Thursday 6/20/19 at a specific time to be set by further order as to 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 6/5/2019) (Entered: 06/06/2019)
165 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Further Case Management Conference held on 6/5/2019. FTR Time: 2:01−2:27. Plaintiff Attorney: Dror Ladin, Lee Sherman, Gavion McCabe, Craig Newby and Justin Sullivan appearing via courtcall. Defendant Attorney: Andrew Warden appearing via courtcall. The Court orders the current preliminary injunction motion and briefing held in abeyance and orders that the motion for partial summary judgment briefing concerning Sections 284 and 8005 include issues raised in the pending preliminary injunction motion. The Court sets: June 12−filing deadline for motion for partial summary judgment and August 29, 2019 at 2:00 p.m.−hearing deadline for motion for summary judgment on remaining issues. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 6/5/2019) (Entered: 06/10/2019)
163 NOTICE of Filing of Administrative Record For El Paso, Yuma, El Centro, and Tucson Border Barrier Projects by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Warden, Andrew) (Filed on 6/7/2019) Modified on 6/10/2019 (cpS, COURT STAFF). (Entered: 06/07/2019)
164 SCHEDULING ORDER: Motions due by 6/12/2019; Responses due by 6/19/2019 and Replies due by 6/24/2019. Signed by Judge Haywood S. Gilliam, Jr. on 6/7/2019. (ndrS, COURT STAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)
Set Additional Deadlines/Hearing, See Docket No. 174 in case no. 19− cv−872−HSG and 164 in case no. 19−cv−892−HSG: Motions due by 7/11/2019; Responses due by 7/25/2019; Replies due by 8/8/2019 and Motion Hearing set for 8/29/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 6/7/2019) Modified on 6/7/2019 (ndrS, COURT STAFF). (Entered: 06/07/2019)
166 ORDER of USCA: Granting Motion for leave to file an amicus brief in support of appellants emergency stay motion as to 145 Notice of Appeal, filed by Steven

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 29 of 39

06/12/2019
06/12/2019 06/13/2019
06/14/2019 06/17/2019 06/18/2019 06/18/2019 06/18/2019 06/18/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019

Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 6/11/2019) (Entered: 06/12/2019)
167 ORDER of USCA: Granting motions filed by the Former U.S. Government Officials and the U.S. House of Representatives for leave to file amicus briefs in opposition to appellants emergency stay motion as to 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 6/12/2019) (Entered: 06/12/2019)
168 MOTION for Partial Summary Judgment filed by Sierra Club, Southern Border Communities Coalition. Responses due by 6/19/2019. Replies due by 6/24/2019. (Attachments: # 1 Appendix of Declarations, # 2 Request for Judicial Notice, # 3 Proposed Order)(Zafar, Noor) (Filed on 6/12/2019) (Entered: 06/12/2019)
169 CLERK'S NOTICE. Notice is hereby given that counsel must notice not re−file the 168 motion for partial summary judgment. Counsel is directed to review the 164 scheduling order and the 165 minute order before noticing the motion. (This is a text−only entry generated by the court. There is no document associated with this entry.)(ndrS, COURT STAFF) (Filed on 6/13/2019) (Entered: 06/13/2019)
170 Renotice motion hearing re 168 MOTION for Partial Summary Judgment filed bySierra Club, Southern Border Communities Coalition. (Related document(s) 168 ) (Zafar, Noor) (Filed on 6/14/2019) (Entered: 06/14/2019)
171 Consent MOTION for Leave to File Amicus Curiae Brief filed by United States House of Representatives. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Letter, Douglas) (Filed on 6/17/2019) (Entered: 06/17/2019)
172 Consent MOTION for Leave to File Amicus Curiae in Support of Plaitniffs' Motion for Partial Summary Judgment filed by Tohono O'odham Nation. (Attachments: # 1 Exhibit Amicus Curiae Brief, # 2 Proposed Order)(Adams, Matthew) (Filed on 6/18/2019) (Entered: 06/18/2019)
173 CERTIFICATE OF SERVICE by Tohono O'odham Nation re 172 Consent MOTION for Leave to File Amicus Curiae in Support of Plaitniffs' Motion for Partial Summary Judgment (Adams, Matthew) (Filed on 6/18/2019) (Entered: 06/18/2019)
174 ORDER by Judge Haywood S. Gilliam, Jr. Granting 171 Motion for Leave to File amicus curiae brief. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 6/18/2019) (Entered: 06/18/2019)
175 ORDER by Judge Haywood S. Gilliam, Jr. Granting 172 Motion for Leave to File amicus curiae brief. Counsel is directed to file the amicus curiae brief on the docket. (ndrS, COURT STAFF) (Filed on 6/18/2019) (Entered: 06/18/2019)
176 Brief of Amicus Curiae in support of Motion for Partial Summary Judgment filed byUnited States House of Representatives. (Letter, Douglas) (Filed on 6/19/2019) Modified on 6/20/2019 (cpS, COURT STAFF). (Entered: 06/19/2019)
177 Brief of Amicus Curiae in support of Motion for Supplemental Preliminary Injunction filed byTohono O'odham Nation. (Adams, Matthew) (Filed on 6/19/2019) Modified on 6/20/2019 (cpS, COURT STAFF). (Entered: 06/19/2019)
178 ORDER by Judge Haywood S. Gilliam, Jr. Granting 156 Motion for Pro Hac Vice as to Daughety, Samuel. (ndrS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)
179 ORDER by Judge Haywood S. Gilliam, Jr. Granting 157 Motion for Pro Hac Vice as to Schaeffer, Suzanne. (ndrS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)
180 ORDER by Judge Haywood S. Gilliam, Jr. Granting 158 Motion for Pro Hac Vice as to Rees, Joshua. (ndrS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)
181 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Responses due by 6/24/2019. (Attachments: # 1 Exhibit,

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 30 of 39

06/24/2019 06/24/2019 06/28/2019 06/28/2019 06/28/2019 06/29/2019 07/01/2019 07/01/2019 07/03/2019 07/03/2019 07/08/2019 07/09/2019

# 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Proposed Order)(Warden, Andrew) (Filed on 6/19/2019) Modified on 6/20/2019 (cpS, COURT STAFF). (Entered: 06/19/2019)
182 REPLY (re 168 MOTION for Partial Summary Judgment ) filed bySierra Club, Southern Border Communities Coalition. (Attachments: # 1 Exhibit)(Zafar, Noor) (Filed on 6/24/2019) (Entered: 06/24/2019)
183 ORDER of USCA: Brief is due 6/28/2019, and shall not exceed 8000 words as to 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 6/24/2019) Modified on 6/26/2019 (cpS, COURT STAFF). (Entered: 06/26/2019)
184 JOINT STATUS REPORT Regarding Defendants' Construction Plans by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, Sierra Club, Southern Border Communities Coalition. (Warden, Andrew) (Filed on 6/28/2019) Modified on 6/30/2019 (cpS, COURT STAFF). (Entered: 06/28/2019)
185 ORDER by Judge Haywood S. Gilliam, Jr., GRANTING IN PART and DENYING IN PART 168 Plaintiffs' Motion for Partial Summary Judgment; DENYING 181 Defendants' Motion for Partial Summary Judgment; CERTIFYING Judgment for Appeal; DENYING Request to Stay. (hsglc3S, COURT STAFF) (Filed on 6/28/2019) (Entered: 06/28/2019)
186 PARTIAL JUDGMENT. Signed by Judge Haywood S. Gilliam, Jr. on 6/28/2019.(hsglc3S, COURT STAFF) (Filed on 6/28/2019) Modified on 7/9/2019 (cpS, COURT STAFF). (Entered: 06/28/2019)
187 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Appeal of Order on Motion for Partial Summary Judgment,,, 185 , Judgment 186 (Appeal fee FEE WAIVED.) (Warden, Andrew) (Filed on 6/29/2019) (Entered: 06/29/2019)
188 NOTICE of Filing of Administrative Record for the Treasury Forfeiture Fund by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit Certification, # 2 Exhibit TFF Administrative Record)(Warden, Andrew) (Filed on 7/1/2019) Modified on 7/2/2019 (cpS, COURT STAFF). (Entered: 07/01/2019)
189 USCA Case Number 19−16300 Ninth Circuit Court of Appeals for 187 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. (cjlS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)
190 ORDER of USCA GRANTING motion to consolidate appeal Nos. 19−16102 and 19−16300 as to 145 Notice of Appeal, 187 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (cpS, COURT STAFF) (Filed on 7/3/2019) (Entered: 07/05/2019)
192 ORDER of USCA, Defendants' Motion for Stay is denied, as to 145 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, 187 Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (jjbS, COURT STAFF) (Filed on 7/3/2019) (Entered: 07/09/2019)
191 STIPULATION WITH PROPOSED ORDER Staying Summary Judgment Briefing Schedule on Claims Related to 10 U.S.C. § 2808 and the Treasury Forfeiture Fund filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump, and Plaintiffs. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 7/8/2019) Modified on 7/9/2019 (jjbS, COURT STAFF). (Entered: 07/08/2019)
193 ORDER by Hon. Haywood S. Gilliam, Jr., STAYING all outstanding summary judgment briefing deadlines and SETTING a telephone conference for July 17, 2019 at 3:00 p.m., to discuss a briefing schedule. Counsel shall contact CourtCall at (866) 582−6878 to make arrangements for the telephonic appearance. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc3S, COURT STAFF) (Filed on 7/9/2019) (Entered: 07/09/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 31 of 39

07/09/2019 07/11/2019 07/12/2019 07/15/2019 07/15/2019
07/17/2019 07/17/2019
07/26/2019 08/27/2019 09/03/2019

Set Hearing, See Docket Nos. 194 in case no. 19−cv−00872−HSG and 193 in case no. 19−cv−00892−HSG: Telephone Conference set for 7/17/2019 03:00 PM in Oakland, Chambers before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 7/9/2019) (Entered: 07/10/2019)
194 NOTICE of Change of Address by Kathleen R. Hartnett (Hartnett, Kathleen) (Filed on 7/11/2019) (Entered: 07/11/2019)
195 SUPPLEMENTAL DECLARATION of Loren Flossman Addressing Treasury Forfeiture Fund by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. (Attachments: # 1 Flossman Declaration (July 11, 2019))(Warden, Andrew) (Filed on 7/12/2019) Modified on 7/15/2019 (jjbS, COURT STAFF). (Entered: 07/12/2019)
Electronic filing error. Incorrect event used. [err101]. Correct event is "Declaration." Event can be found under Civil Events > Motions and Related Filings > Mot ions−General > Declaration in Support/Opposition. Corrected by Clerk's Office. No further action is necessary. Re: 195 Notice (Other), filed by Steven Mnuchin, Mark T Esper, Kevin K. McAleenan, Donald J. Trump. (jjbS, COURT STAFF) (Filed on 7/15/2019) (Entered: 07/15/2019)
196 ORDER of USCA, Defendants' Unopposed Motion to Consolidate Appeals is Granted, as to (145 in 4:19−cv−00892−HSG) Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, (187 in 4:19−cv−00892−HSG) Notice of Appeal, filed by Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump, (187 in 4:19−cv−00872−HSG) Notice of Appeal,, filed by U.S. Department of Homeland Security, David Bernhardt, Richard V. Spencer, Mark T. Esper, Department of Defense, United States of America, Patrick M. Shanahan, U.S. Department of the Interior, Kirstjen M. Nielsen, Steven T. Mnuchin, U.S. Department of the Treasury, Donald J. Trump, (191 in 4:19−cv−00872−HSG) Notice of Cross Appeal to the Ninth Circuit, filed by State of California, State of New Mexico (jjbS, COURT STAFF) (Filed on 7/15/2019) (Entered: 07/16/2019)
197 ORDER by Judge Haywood S. Gilliam, Jr. Granting 191 Stipulation Staying Summary Judgment Briefing Schedule on Claims Related to 10 U.S.C. § 2808 and the Treasury Forfeiture Fund. (ndrS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
198 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Telephone Conference held on 7/17/2019. Total Time in Court: 10 Minutes. Not Reported. Plaintiff Attorney: Christine Chuang; Mollie Lee; Heather Leslie; Gavin McCabe; Craig Newby; Lee Sherman; Justin Sullivan; James Zahradka and Dror Ladin. Defendant Attorney: Andrew Warden. The Court advises the parties that it will grant the stipulation and proposed order in Sierra Club v. Trump, No. 4:19−cv−00892−HSG (docket no. 191). The parties in California v. Trump, No. 4:19−cv−00872−HSG are directed to meet and confer and e−file (1) a revised stipulation and proposed order regarding summary judgment briefing related to 10 U.S.C. § 2808, and (2) a stipulated dismissal without prejudice concerning claims related to the Treasury Forfeiture Fund. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 7/17/2019) (Entered: 07/18/2019)
199 ORDER of United States Supreme Court. (jjbS, COURT STAFF) (Filed on 7/26/2019) (Entered: 07/29/2019)
200 NOTICE Of Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Filed on 8/27/2019) Modified on 8/28/2019 (jjbS, COURT STAFF). (Entered: 08/27/2019)
201 NOTICE of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Warden, Andrew) (Filed on 9/3/2019) Modified on 9/4/2019 (jjbS, COURT STAFF). (Entered: 09/03/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 32 of 39

09/05/2019 09/13/2019 09/13/2019 09/16/2019 09/16/2019 09/17/2019 09/30/2019 10/03/2019 10/11/2019 10/17/2019
10/17/2019 10/18/2019

202 Supplement to 201 Notice of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 9/5/2019) Modified on 9/6/2019 (jjbS, COURT STAFF). (Entered: 09/05/2019)
203 STATUS REPORT Filed Jointly By Plaintiffs and Defendants Proposing Briefing Schedule For Summary Judgment Motions on Claims Related to 10 U.S.C. § 2808 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump, Sierra Club, and Southern Border Communities Coalition. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 9/13/2019) Modified on 9/16/2019 (jjbS, COURT STAFF). (Entered: 09/13/2019)
204 Supplemental NOTICE Regarding Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump re 200 Notice (Other), (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 9/13/2019) Modified on 9/16/2019 (jjbS, COURT STAFF). (Entered: 09/13/2019)
205 SCHEDULING ORDER: Motions due by 10/11/2019; Cross Motions due by 10/25/2019; Responses due by 11/1/2019; Replies due by 11/8/2019 and Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. Signed by Judge Haywood S. Gilliam, Jr. on 9/16/2019. (ndrS, COURT STAFF) (Filed on 9/16/2019) Modified on 9/17/2019 to correct typo (time 10 not 2) (ndrS, COURT STAFF). (Entered: 09/16/2019)
206 NOTICE by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump of Filing of Administrative Record For Section 2808 Border Barrier Projects (Attachments: # 1 Exhibit Certification, # 2 Exhibit 2808 Administrative Record − Part 1, # 3 Exhibit 2808 Administrative Record − Part 2, # 4 Exhibit 2808 Administrative Record − Part 3)(Warden, Andrew) (Filed on 9/16/2019) (Entered: 09/16/2019)
207 NOTICE of Withdrawal of Counsel Christine P. Sun by Mollie M Lee (Lee, Mollie) (Filed on 9/17/2019) Modified on 9/18/2019 (jjbS, COURT STAFF). (Entered: 09/17/2019)
208 NOTICE Regarding Funding of Border Barrier Projects Pursuant to 10 U.S.C. § 284 in Fiscal Year 2020 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Declaration)(Warden, Andrew) (Filed on 9/30/2019) Modified on 10/1/2019 (jjbS, COURT STAFF). (Entered: 09/30/2019)
209 NOTICE Regarding Use Of The Treasury Forfeiture Fund by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Declaration, # 2 Declaration)(Warden, Andrew) (Filed on 10/3/2019) Modified on 10/4/2019 (jjbS, COURT STAFF). (Entered: 10/03/2019)
210 MOTION for Partial Summary Judgment filed by Sierra Club, Southern Border Communities Coalition. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 10/25/2019. Replies due by 11/1/2019. (Attachments: # 1 Appendix of Declarations, # 2 Request for Judicial Notice, # 3 Proposed Order)(Ladin, Dror) (Filed on 10/11/2019) (Entered: 10/11/2019)
211 MOTION for Leave to File Amicus Curiae Brief filed by Brennan Center for Justice at NYU School of Law. (Attachments: # 1 Proposed Order Granting Motion for Leave to File Memorandum of Brennan Center for Justice and Cato Institute as Amici Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment, # 2 Exhibit Brief of the Brennan Center for Justice and the Cato Institute as Amici Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment)(Goitein, Elizabeth) (Filed on 10/17/2019) (Entered: 10/17/2019)
212 NOTICE of Appearance by Jessica L. Duggan (Duggan, Jessica) (Filed on 10/17/2019) (Entered: 10/17/2019)
213 Consent MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Amici Curiae Former Members of Congress. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 33 of 39

10/18/2019 10/18/2019 10/18/2019 10/18/2019 10/18/2019
10/21/2019 10/21/2019
10/21/2019 10/21/2019 10/21/2019

before Judge Haywood S Gilliam Jr.. Responses due by 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Exhibit Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs Motion for Partial Summary Judgment, # 2 Proposed Order Granting Consent Motion for Leave to File Brief of Former Members of Congress as Amici Curiae in Support of Plaintiffs Moition for Partial Summary Judgment)(Winthrop, Douglas) (Filed on 10/18/2019) (Entered: 10/18/2019)
214 Consent MOTION for Leave to File Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plantiffs' Motion for Partial Summary Judgment filed by NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Turnage Young, Michaele) (Filed on 10/18/2019) (Entered: 10/18/2019)
215 Consent MOTION for Leave to File Brief as Amicus Curiae In Support of Plaintiffs Motion for Partial Summary Judgment filed by Tohono O'odham Nation. (Attachments: # 1 Exhibit Amicus Curiae Brief of Tohono Oodham Nation In Support of Plaintiffs Motion for Partial Summary Judgment, # 2 Proposed Order Granting Motion of Tohono Oodham Nation for Leave to File Brief as Amicus Curiae)(Duggan, Jessica) (Filed on 10/18/2019) (Entered: 10/18/2019)
216 ORDER by Judge Haywood S. Gilliam, Jr. Granting 211 Motion for Leave to File Amicus Curiae Brief. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/18/2019) (Entered: 10/18/2019)
217 Consent MOTION to File Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment filed by United States House of Representatives. Motion Hearing set for 11/20/2019 10:00 AM before Judge Haywood S Gilliam Jr.. Responses due by 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Letter, Douglas) (Filed on 10/18/2019) (Entered: 10/18/2019)
218 Consent MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Former U.S. Government Officials. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Brief of Former U.S. Government Officials as Amici Curiae in Support of Plaintiffs Motion for Partial Summary Judgment, # 2 Proposed Order)(Hartnett, Kathleen) (Filed on 10/18/2019) (Entered: 10/18/2019)
219 BRIEF as Amicus Curiae in Support of Motion for Partial Summary Judgment by Brennan Center for Justice at NYU School of Law. (Goitein, Elizabeth) (Filed on 10/21/2019) Modified on 10/22/2019 (jjbS, COURT STAFF). (Entered: 10/21/2019)
220 ORDER by Hon. Haywood S. Gilliam, Jr. SETTING November 4, 2019, as the deadline for any motion for leave to file an amicus brief related to the partial motions for summary judgment, set for hearing on November 20, 2019, at 10:00 a.m., see Dkt. No. 220 in Case No. 4:19−cv−00872, and Dkt. No. 210 in Case No. 4:19−cv−00892. Any motion received after November 4 will be denied as untimely. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc1S, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
221 ORDER by Judge Haywood S. Gilliam, Jr. Granting 213 Consent MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
222 ORDER by Judge Haywood S. Gilliam, Jr. Granting 214 Consent MOTION for Leave to File Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plantiffs' Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
223 ORDER by Judge Haywood S. Gilliam, Jr. Granting 215 Consent MOTION for Leave to File Brief as Amicus Curiae In Support of Plaintiffs Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/21/2019) Modified on

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 34 of 39

10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/22/2019 10/22/2019
10/22/2019 10/22/2019 10/25/2019 10/25/2019
10/25/2019

10/21/2019 to add language on the docket that appears on the written order. (ndrS, COURT STAFF). (Entered: 10/21/2019)
224 ORDER by Judge Haywood S. Gilliam, Jr. Granting 217 Consent MOTION to File Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
225 ORDER by Judge Haywood S. Gilliam, Jr. Granting 218 Consent MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
226 Brief of Former U.S. Government Officials as Amici Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment filed byFormer U.S. Government Officials. (Hartnett, Kathleen) (Filed on 10/21/2019) (Entered: 10/21/2019)
227 NOTICE of Appearance by Mark R. Conrad (Conrad, Mark) (Filed on 10/21/2019) (Entered: 10/21/2019)
228 Consent MOTION for Leave to File Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment filed by Iraq and Afghanistan Veterans of America. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Conrad, Mark) (Filed on 10/21/2019) (Entered: 10/21/2019)
229 Brief of Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment filed by NAACP Legal Defense and Educational Fund, Inc.. (Related document(s) 222 ) (Turnage Young, Michaele) (Filed on 10/21/2019) Modified on 10/22/2019 (jjbS, COURT STAFF). (Entered: 10/21/2019)
230 Brief of Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment filed byUnited States House of Representatives. (Letter, Douglas) (Filed on 10/22/2019) Modified on 10/23/2019 (jjbS, COURT STAFF). (Entered: 10/22/2019)
231 ORDER by Judge Haywood S. Gilliam, Jr. Granting 228 Consent MOTION for Leave to File Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment. Counsel is directed to file the amicus curiae brief on the docket in this matter. (ndrS, COURT STAFF) (Filed on 10/22/2019) (Entered: 10/22/2019)
232 Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment re 231 Order on Motion for Leave to File, filed by Iraq and Afghanistan Veterans of America. (Related document(s) 231 ) (Conrad, Mark) (Filed on 10/22/2019) Modified on 10/23/2019 (jjbS, COURT STAFF). (Entered: 10/22/2019)
233 Amicus Curiae Brief In Support of Plaintiffs Motion for Partial Summary Judgment re 223 Order on Motion for Leave to File, filed byTohono O'odham Nation. (Related document(s) 223 ) (Duggan, Jessica) (Filed on 10/22/2019) Modified on 10/23/2019 (jjbS, COURT STAFF). (Entered: 10/22/2019)
234 NOTICE of Appearance by Megan Barbero (Barbero, Megan) (Filed on 10/25/2019) (Entered: 10/25/2019)
235 MOTION for Leave to Present Argument in the Summary Judgment Hearing filed by United States House of Representatives. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 11/8/2019. Replies due by 11/15/2019. (Attachments: # 1 Proposed Order)(Barbero, Megan) (Filed on 10/25/2019) (Entered: 10/25/2019)
236 MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Proposed Order)(Warden, Andrew) (Filed on 10/25/2019) (Entered: 10/25/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 35 of 39

10/31/2019 10/31/2019 11/01/2019
11/04/2019 11/04/2019 11/04/2019
11/05/2019 11/05/2019 11/05/2019 11/05/2019 11/08/2019 11/20/2019

237 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13843625.) filed by Iraq and Afghanistan Veterans of America. (Attachments: # 1 Exhibit Certificate of Good Standing)(Rodman, Lindsay) (Filed on 10/31/2019) (Entered: 10/31/2019)
238 ORDER by Judge Haywood S. Gilliam, Jr. Granting 235 Motion for Leave to Present Argument in the Summary Judgment Hearing. (ndrS, COURT STAFF) (Filed on 10/31/2019) (Entered: 10/31/2019)
239 REPLY (re 210 MOTION for Partial Summary Judgment , 236 MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) filed bySierra Club, Southern Border Communities Coalition. (Attachments: # 1 Supplemental Request for Judicial Notice, # 2 Second Appendix of Declarations)(Ladin, Dror) (Filed on 11/1/2019) (Entered: 11/01/2019)
240 ORDER by Judge Haywood S. Gilliam, Jr. Granting 237 Motion for Pro Hac Vice as to Rodman, Lindsay. (ndrS, COURT STAFF) (Filed on 11/4/2019) (Entered: 11/04/2019)
241 Consent MOTION to File Amicus Curiae Brief filed by Federal Courts Scholars. Motion Hearing set for 11/20/2019 10:00 AM before Judge Haywood S Gilliam Jr.. Responses due by 11/18/2019. Replies due by 11/25/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 11/4/2019) (Entered: 11/04/2019)
242 Consent MOTION to File Amicus Curiae Brief in Support of Motion for Summary Judgment filed by Andy Barr. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 11/18/2019. Replies due by 11/25/2019. (Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Proposed Order proposed order)(Joseph, Lawrence) (Filed on 11/4/2019) Modified on 11/5/2019 (jjbS, COURT STAFF). (Entered: 11/04/2019)
243 ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 243 in case 4:19−cv−00872−HSG and 241 in case 4:19−cv−00892−HSG) Motion to File Amicus Curiae Brief. Counsel is directed to file federal courts scholars amici curiae brief on the docket in these matters. (ndrS, COURT STAFF) (Filed on 11/5/2019) (Entered: 11/05/2019)
244 ORDER by Judge Haywood S. Gilliam, Jr. Granting Consent 242 MOTION to File Amicus Curiae Brief in Support of Motion for Summary Judgment. Counsel is directed to file the brief on the docket. (ndrS, COURT STAFF) (Filed on 11/5/2019) Modified on 11/5/2019 (ndrS, COURT STAFF). (Entered: 11/05/2019)
245 Brief of Amici Curiae Federal Courts Scholars in Opposition to Defendants' Motion for Partial Summary Judgment filed by Federal Courts Scholars. (Wydra, Elizabeth) (Filed on 11/5/2019) Modified on 11/6/2019 (jjbS, COURT STAFF). (Entered: 11/05/2019)
246 Brief of U.S. Rep. Any Barr as Amicus Curiae in Support of Defendant's Motion for Partial Summary Judgment re 244 Order on Motion to File Amicus Curiae Brief, filed by Andy Barr. (Related document(s) 244 ) (Joseph, Lawrence) (Filed on 11/5/2019) Modified on 11/6/2019 (jjbS, COURT STAFF). (Entered: 11/05/2019)
247 REPLY (re 236 MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) filed byMark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Filed on 11/8/2019) (Entered: 11/08/2019)
248 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Motion Hearing held on 11/20/2019. Total Time in Court: 2 Hours and 7 Minutes. Court Reporter: Pamela Batalo−Hebel. Plaintiff Attorney: Heather Leslie; Dror Ladin and Megan Barbero. Defendant Attorney: Eric Grant and James Burnham. Cross−motions for partial summary judgment (docket nos. 220 and 236 in case no. 19−cv−00872−HSG and 210 and 236 in case no. 19−cv−00892−HSG) are argued and submitted by the parties. Counsel for defendants are directed to advise the Court in a filing by noon Pacific Standard Time on November 25th

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 36 of 39

11/25/2019 11/25/2019 11/26/2019
11/26/2019 11/27/2019 11/27/2019 12/05/2019 12/05/2019 12/10/2019 12/11/2019

(maximum of five pages), 1) whether there is underlying authority for the nearby limitation cited in the Section 2808 Administrative Record; and 2) how, and under whose authority, a military installation may be created. Counsel for plaintiffs responses are due by close of business (5 p.m.) on November 26th. The motions will be deemed submitted upon filing of plaintiffs responses. Written order to issue. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 11/20/2019) (Entered: 11/20/2019)
249 RESPONSE To The Court's November 20, 2019 Order Requesting Additional Information About Military Installations by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 11/25/2019) (Entered: 11/25/2019)
250 TRANSCRIPT ORDER for proceedings held on November 20, 2019 before Judge Haywood S Gilliam, Jr by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump, for Court Reporter Pam Batalo. (Warden, Andrew) (Filed on 11/25/2019) (Entered: 11/25/2019)
251 Transcript of Proceedings held on 11/20/19, before Judge Gilliam. Court Reporter Pamela Batalo Hebel, telephone number 626−688−7509; pamela_batalo−hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (253 in 4:19−cv−00872−HSG) Transcript Order, (252 in 4:19−cv−00872−HSG) Transcript Order, (250 in 4:19−cv−00892−HSG) Transcript Order ) Redaction Request due 12/17/2019. Redacted Transcript Deadline set for 12/27/2019. Release of Transcript Restriction set for 2/24/2020. (Batalo, Pam) (Filed on 11/26/2019) (Entered: 11/26/2019)
252 RESPONSE re 249 Response, to the Court's November 20, 2019 Order Requesting Additional Information About Military Installations by Sierra Club, Southern Border Communities Coalition. (Ladin, Dror) (Filed on 11/26/2019) Modified on 11/27/2019 (jjbS, COURT STAFF). (Entered: 11/26/2019)
253 TRANSCRIPT ORDER for proceedings held on 11/20/2019 before Judge Haywood S Gilliam, Jr for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 11/27/2019) (Entered: 11/27/2019)
254 TRANSCRIPT ORDER for proceedings held on 11/20/2019 before Judge Haywood S Gilliam, Jr for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 11/27/2019) (Entered: 11/27/2019)
255 TRANSCRIPT ORDER for proceedings held on 11/20/2019 before Judge Haywood S Gilliam, Jr by Sierra Club, for Court Reporter Pam Batalo. (Ladin, Dror) (Filed on 12/5/2019) (Entered: 12/05/2019)
256 TRANSCRIPT ORDER for proceedings held on 11/20/2019 before Judge Haywood S Gilliam, Jr by Tohono O'odham Nation, for Court Reporter Pam Batalo. (Daughety, Samuel) (Filed on 12/5/2019) (Entered: 12/05/2019)
257 NOTICE of Decision in El Paso County v. Trump (W.D. Tex.) by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 12/10/2019) Modified on 12/10/2019 (jjbS, COURT STAFF). (Entered: 12/10/2019)
258 ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART PLAINTIFFS (220 in case 4:19−cv−00872−HSG and 210 in case 4:19−cv−00892−HSG) MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS (236 in case 4:19−cv−00872−HSG and 236 in case 4:19−cv−00892−HSGM OTIONS FOR PARTIAL SUMMARY JUDGMENT.(ndrS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 37 of 39

12/11/2019 12/13/2019 12/16/2019 12/26/2019 12/30/2019 01/03/2020 01/06/2020 01/08/2020 01/21/2020
01/21/2020 01/22/2020 01/23/2020 01/24/2020 01/24/2020 02/04/2020 02/04/2020

259 CLERK'S JUDGMENT. (ndrS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)
260 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump. Appeal of Clerk's Judgment 259 , Order on Motion for Partial Summary Judgment,,,,,,, 258 (Appeal fee FEE WAIVED.) (Warden, Andrew) (Filed on 12/13/2019) (Entered: 12/13/2019)
261 USCA Case Number 19−17501 Ninth Circuit Court of Appeals for 260 Notice of Appeal, filed by Steven Mnuchin, Mark T Esper, Kevin K. McAleenan, Donald J. Trump. (cjlS, COURT STAFF) (Filed on 12/16/2019) (Entered: 12/16/2019)
262 ORDER of USCA, motion for leave to file an amicus curiae brief is GRANTED, as to 261 USCA Case Number (jjbS, COURT STAFF) (Filed on 12/26/2019) (Entered: 12/27/2019)
263 ORDER of USCA dying the request to lift the stay, as to 260 Notice of Appeal, filed by Steven Mnuchin, Mark T Esper, Kevin K. McAleenan, Donald J. Trump (jjbS, COURT STAFF) (Filed on 12/30/2019) Modified on 1/2/2020 (jjbS, COURT STAFF). (Entered: 12/30/2019)
264 ORDER of USCA as to 260 Notice of Appeal, filed by Steven Mnuchin, Mark T Esper, Kevin K. McAleenan, Donald J. Trump. (jjbS, COURT STAFF) (Filed on 1/3/2020) (Entered: 01/06/2020)
265 ORDER by Judge Haywood S. Gilliam, Jr. Granting Consent 159 MOTION to File Amicus Curiae Brief.(ndrS, COURT STAFF) (Filed on 1/6/2020) (Entered: 01/06/2020)
266 NOTICE Regarding Use Of The Treasury Forfeiture Fund by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 1/8/2020) Modified on 1/9/2020 (jjbS, COURT STAFF). (Entered: 01/08/2020)
267 STIPULATION WITH PROPOSED ORDER Requesting Enlargement of Time to File Proposed Schedule for Briefing Treasury Forfeiture Fund Claims filed by Sierra Club, Southern Border Communities Coalition, Donald J. Trump, Steven Mnuchin, Kevin K. McAleenan, ad Mark T. Esper. (Attachments: # 1 Proposed Order)(Zafar, Noor) (Filed on 1/21/2020) Modified on 1/22/2020 (jjbS, COURT STAFF). (Entered: 01/21/2020)
268 ORDER by Judge Haywood S. Gilliam, Jr. Granting 267 Stipulation Requesting Enlargement of Time to File Proposed Schedule for Briefing Treasury Forfeiture Fund Claims. (ndrS, COURT STAFF) (Filed on 1/21/2020) (Entered: 01/21/2020)
269 SUPPLEMENTAL NOTICE Regarding Section 2808 Construction by Kevin K. McAleenan, Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump (Attachments: # 1 Exhibit)(Westmoreland, Rachael) (Filed on 1/22/2020) Modified on 1/23/2020 (jjbS, COURT STAFF). (Entered: 01/22/2020)
270 MOTION to Withdraw as Attorney Matthew G. Adams as Counsel for Amici Curiae filed by Tohono O'odham Nation. Responses due by 2/6/2020. Replies due by 2/13/2020. (Attachments: # 1 Proposed Order)(Duggan, Jessica) (Filed on 1/23/2020) (Entered: 01/23/2020)
271 ORDER by Judge Haywood S. Gilliam, Jr. Granting 270 Motion to Withdraw as Attorney Matthew G. Adams as Counsel for Amici Curiae. (ndrS, COURT STAFF) (Filed on 1/24/2020) (Entered: 01/24/2020)
272 ORDER of USCA as to 260 Notice of Appeal, filed by Steven Mnuchin, Mark T Esper, Kevin K. McAleenan, Donald J. Trump (jjbS, COURT STAFF) (Filed on 1/24/2020) (Entered: 01/29/2020)
273 ADMINISTRATIVE MOTION to Withdraw as Attorney filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Donald J. Trump. Responses due 2/10/2020. (Burnham, James) (Filed on 2/4/2020) Modified on 2/4/2020 (jjbS, COURT STAFF). (Entered: 02/04/2020)
274 ORDER by Judge Haywood S. Gilliam, Jr. Granting 273 Motion to Withdraw as Attorney. (ndrS, COURT STAFF) (Filed on 2/4/2020) (Entered: 02/04/2020)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 38 of 39

02/04/2020 02/05/2020 02/05/2020 02/06/2020 02/07/2020
02/13/2020 02/14/2020 02/18/2020 02/20/2020
02/28/2020

275 STIPULATION WITH PROPOSED ORDER Requesting Enlargement of Time to File Proposed Schedule for Briefing the Treasury Forfeiture Fund Claims re 268 Order on Stipulation filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump, Sierra Club, and Southern Border Communities Coalition. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 2/4/2020) Modified on 2/5/2020 (jjbS, COURT STAFF). (Entered: 02/04/2020)
276 ORDER by Judge Haywood S. Gilliam, Jr. Granting 275 Stipulation Requesting Enlargement of Time to File Proposed Schedule for Briefing the Treasury Forfeiture Fund Claims Re Docket No. 268 . (ndrS, COURT STAFF) (Filed on 2/5/2020) (Entered: 02/05/2020)
277 STIPULATION WITH PROPOSED ORDER for Order Dismissing Without Prejudice Plaintiff's Treasury Forfeiture Fund Claims filed by Sierra Club, Southern Border Communities Coalition, Donald J. Trump, Steven Mnuchin, Mark T. Esper, and Kevin K. McAleenan. (Attachments: # 1 Proposed Order)(Ladin, Dror) (Filed on 2/5/2020) Modified on 2/6/2020 (jjbS, COURT STAFF). (Entered: 02/05/2020)
278 ORDER by Judge Haywood S. Gilliam, Jr. Granting 277 Stipulation for Order Dismissing Without Prejudice Plaintiff's Treasury Forfeiture Fund Claims.(ndrS, COURT STAFF) (Filed on 2/6/2020) (Entered: 02/06/2020)
279 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING parties in State of California v. Trump, Case No. 19−0872, and Sierra Club v. Trump, Case No. 19−0892, TO SHOW CAUSE why judgment should not be entered and the cases closed in accordance with the Court's orders on the motions for summary judgment and in light of Plaintiffs' dismissal of the claims related to the Treasury Forfeiture Fund. The parties shall file a joint statement of two pages or less by February 14, 2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (hsglc1S, COURT STAFF) (Filed on 2/7/2020) (Entered: 02/07/2020)
280 NOTICE Regarding Authorization of Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Declaration Seventh Rapuano Declaration, # 2 Declaration Second Stiglich Declaration)(Warden, Andrew) (Filed on 2/13/2020) Modified on 2/14/2020 (jjbS, COURT STAFF). (Entered: 02/13/2020)
281 JOINT STATEMENT IN RESPONSE TO ORDER TO SHOW CAUSE by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump, Sierra Club, and Southern Border Communities Coalition. (Warden, Andrew) (Filed on 2/14/2020) Modified on 2/18/2020 (jjbS, COURT STAFF). (Entered: 02/14/2020)
282 CLERK'S NOTICE SETTING TELEPHONIC CONFERENCE. Notice is hereby given that a Telephonic Conference has been set for February 20th, before Judge Haywood S. Gilliam, Jr., at 10:00 a.m. Counsel shall contact CourtCall at (866) 582− 6878 to make arrangements for the telephonic appearance. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 2/18/2020) (Entered: 02/18/2020)
283 Minute Entry for proceedings held before Judge Haywood S. Gilliam, Jr.: Telephone Conference held on 2/20/2020. Total Time in Court: 15 Minutes. Not Reported. Plaintiff Attorney: Christine Chuang; Heather Leslie; Lee Sherman; James Zahradka; Dror Ladin; Molloe Lee and Noor Zafar all appearing via courtcall. Defendant Attorney: Andrew Warden appearing via courtcall. Plaintiffs are directed that to the extent they want to bring additional claims or allege additional facts in light of Defendants notice regarding authorization of additional border barrier projects they may e−file new complaints that the Court will relate to these actions. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Date Filed: 2/20/2020) (Entered: 02/21/2020)
284 MOTION to Relate Case filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Complaint, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Ladin, Dror) (Filed on 2/28/2020) (Entered: 02/28/2020)

Case: 4:19-cv-892 As of: 07/23/2020 05:15 PM PDT 39 of 39

03/02/2020 04/29/2020
05/01/2020 06/05/2020

285 RELATED CASE ORDER by Judge Haywood S. Gilliam, Jr Re Docket No. 284 . (ndrS, COURT STAFF) (Filed on 3/2/2020) (Entered: 03/02/2020)
286 NOTICE of Changes In Funding For Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 in Fiscal Year 2019, filed by Mark T Esper, Kevin K. McAleenan, Steven Mnuchin, Donald J. Trump (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 4/29/2020) Modified on 4/30/2020 (jlmS, COURT STAFF). (Entered: 04/29/2020)
287 ORDER of USCA: That the motion for leave to file amicus curiae brief is GRANTED as to 260 Notice of Appeal. USCA No. 19−17501 (jlmS, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/04/2020)
288 ***ERRONEOUS ENTRY; PLEASE REFER TO DOCUMENT NO. 289 ***

06/05/2020 06/26/2020 06/26/2020

NOTICE of Substitution of Counsel by Vasudha Talla (Talla, Vasudha) (Filed on 6/5/2020) Modified on 6/8/2020 (jlmS, COURT STAFF). (Entered: 06/05/2020)
289 NOTICE of Substitution of Counsel by Vasudha Talla (Talla, Vasudha) (Filed on 6/5/2020) (Entered: 06/05/2020)
290 USCA Memorandum: Affirming the decision of the district court as to 145 Notice of Appeal, 187 Notice of Appeal; USCA No. 19−16102, USCA No. 19−16300 (jlmS, COURT STAFF) (Filed on 6/26/2020) (Entered: 06/26/2020)
291 USCA Memorandum: Affirming the decision of the district court as to 260 Notice of Appeal; USCA Case No. 19−16299 (jlmS, COURT STAFF) (Filed on 6/26/2020) (Entered: 06/26/2020)

 
 Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 1 of 33

1 DROR LADIN*
NOOR ZAFAR*
2 HINA SHAMSI*
OMAR C. JADWAT*
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
4 New York, NY 10004
Tel: (212) 549-2660
5 dladin@aclu.org
nzafar@aclu.org
6 hshamsi@aclu.org
ojadwat@aclu.org
7 *Application for admission pro hac vice forthcoming

8 CECILLIA D. WANG (SBN 187782)

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

9 39 Drumm Street

San Francisco, CA 94111

10 Tel: (415) 343-0770

cwang@aclu.org

11

SANJAY NARAYAN (SBN 183227)**

12 GLORIA D. SMITH (SBN 200824)**

SIERRA CLUB ENVIRONMENTAL LAW PROGRAM

13 2101 Webster Street, Suite 1300

Oakland, CA 94612

14 Tel: (415) 977-5772

sanjay.narayan@sierraclub.org

15 gloria.smith@sierraclub.org

**Counsel for Plaintiff SIERRA CLUB

16

Attorneys for Plaintiffs (Additional counsel listed on following page)

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO-OAKLAND DIVISION

19

SIERRA CLUB and SOUTHERN BORDER

20 COMMUNITIES COALITION,

21

Plaintiffs,

Case No.:

22

v.

23 DONALD J. TRUMP, President of the United
States, in his official capacity; PATRICK M.
24 SHANAHAN, Acting Secretary of Defense, in his
official capacity; KIRSTJEN M. NIELSEN,
25 Secretary of Homeland Security, in her official
capacity; and STEVEN MNUCHIN, Secretary of
26 the Treasury, in his official capacity,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

27

Defendants.

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 2 of 33
1 Additional counsel for Plaintiffs:
2 MOLLIE M. LEE (SBN 251404)
CHRISTINE P. SUN (SBN 218701)
3 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street
San Francisco, CA 94111
5 Tel: (415) 621-2493
Fax: (415) 255-8437
6 mlee@aclunc.org
csun@aclunc.org
7
DAVID DONATTI*
8 ANDRE I. SEGURA (SBN 247681)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
9 OF TEXAS
P.O. Box 8306
10 Houston, TX 77288
Tel: (713) 325-7011
11 Fax: (713) 942-8966
ddonatti@aclutx.org
12 asegura@aclutx.org
*Application for admission pro hac vice forthcoming
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 3 of 33

1

INTRODUCTION

2

1. On February 15, 2019, President Donald Trump invoked his authority under the

3 National Emergencies Act, 50 U.S.C. §§ 1601–1651, to declare a national emergency and divert

4 billions of dollars appropriated for other purposes to carry out his campaign promise to build a wall

5 along the U.S.-Mexico border.

6

2. The President’s declaration was made solely out of disagreement with Congress’s

7 decision about the proper funding level, location, and timetable for constructing a border wall. On

8 the same day that President Trump signed his declaration, he also signed an act of Congress

9 appropriating only $1.375 billion for the border wall. The law Congress passed not only denied the

10 President the additional billions he had demanded, but also imposed substantial restrictions on the

11 location and timing of border wall construction.

12

3. In announcing his declaration of a national emergency, the President stated, “I don’t

13 need to do this,” but explained that he preferred to build the border wall faster than Congress’s

14 appropriation would allow.

15

4. The President’s declaration plainly states that the invocation of an emergency is to

16 address a “long-standing” problem of “large-scale unlawful migration through the southern border”

17 and the President’s opinion that the number of families seeking asylum at the U.S.-Mexico border

18 presents an “emergency.” In fact, there was and is no national emergency to justify the President’s

19 action, only his disagreement with Congress’s duly enacted decisions on the extent and pace of

20 spending on the border wall.

21

5. On its face, the declaration does not meet the requirements of the statutory

22 authorization that the President invokes, 10 U.S.C. § 2808. That law, duly enacted by Congress,

23 provides that the President may declare an emergency to deploy military construction funds “that are

24 necessary to support such [emergency] use of the armed forces.” The declaration does not set forth

25 any actual emergency, any use of the armed forces required to address such an emergency, or how a

26 diversion of military construction funds is necessary to support the use of the armed forces of the

27 United States. The President has also instructed his subordinates to divert additional sources of

28

1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 4 of 33

1 Departments of Defense and Treasury funds that Congress restricted for other purposes, in an effort

2 to secure the appropriations that Congress denied him for the border wall.

3

6. Neither a declaration of emergency nor the Defense and Treasury funding statutes the

4 administration has invoked permit the President to disregard Congress’s enacted appropriations

5 legislation. The President’s actions violate both those statutes and the Constitution.

6

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

7 President’s unlawful declaration of a national emergency and bring this action seeking declaratory

8 and injunctive relief and other remedies as set forth below.

9

JURISDICTION AND VENUE

10

8. This case arises under the Consolidated Appropriations Act of 2019, Pub. Law No.

11 116-6; Article I, section 9, clause 7 of the U.S. Constitution; Article I, section 7 of the U.S.

12 Constitution; the National Environmental Policy Act, 42 U.S.C. § 4332; the Administrative

13 Procedures Act, 5 U.S.C. §§ 701–706, and other acts of Congress. This Court has subject matter

14 jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), 1651 (All Writs Act) and

15 2201 (declaratory relief).

16

9. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of

17 the United States and officers of the United States acting in their official capacity and (1) at least one

18 plaintiff resides in this district; and/or (2) a substantial part of the events or omissions giving rise to

19 the claims occurred in this district.

20

10. In addition to the harm caused to Plaintiff Sierra Club described below, the

21 challenged action will have an impact throughout the Northern District of California, including in

22 Contra Costa County and Monterey County, where the Department of Defense maintains several

23 bases and facilities. The challenged action jeopardizes millions of dollars of Department of Defense

24 funding for constructions projects at military bases in this District.

25

PARTIES

26

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

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

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

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 5 of 33

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

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

3 Many of Sierra Club’s members reside, work, recreate, and/or enjoy areas along the border of the

4 United States and Mexico. Sierra Club has more than 400,000 members in California, over 9,700 of

5 whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon Chapter, which covers the State

6 of Arizona, has more than 16,000 members. Sierra Club’s Rio Grande Chapter includes over 10,000

7 members in New Mexico and West Texas. Sierra Club’s Lone Star Chapter, which covers the State

8 of Texas, has more than 26,100 members, more than 440 of whom live in the Lower Rio Grande

9 Valley.

10

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

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

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

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

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

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

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

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

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

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

20

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

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

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

23 scientific, recreational, and aesthetic uses. Among the areas visited by Sierra Club members are: the

24 Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness

25 Area (California), the Sonoran Desert (Arizona), Cabeza Prieta National Wildlife Refuge (Arizona),

26 the Chihuahan Desert (New Mexico), Santa Ana National Wildlife Refuge (Texas), the Lower Rio

27 Grande Valley National Wildlife Refuge (Texas), Bentsen-Rio Grande Valley State Park (Texas), La

28 Lomita Historical Park (Texas), and the National Butterfly Center (Texas). Sierra Club members

3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 6 of 33

1 also reside, work, and recreate in and around cities and towns affected by the border wall, including

2 but not limited to Santa Teresa, New Mexico; San Ysidro and Imperial Beach, California; Roma,

3 Texas; Rio Grande City, Texas; Escobares, Texas; La Grulla, Texas; and Salineño, Texas.

4

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

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

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

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

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

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

10 for the very purpose of protecting the places, species, and values Sierra Club members work to

11 protect. The requested relief will redress these injuries.

12

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

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

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

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

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

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

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

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

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

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

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

23 Texas to oppose continued wall construction. As a result of the President’s emergency declaration,

24 Sierra Club has also redirected staff and volunteers within its California offices to investigate and

25 assess the extent of construction activities along the border in those areas outside those delineated by

26 congressional appropriations, and the impacts of those activities.

27

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

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

4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 7 of 33

1 brings together 60 organizations from California, Arizona, New Mexico, and Texas to promote

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

3 enforcement policies that respect human dignity and human rights and prevent loss of life, as well as

4 rational and humane immigration-reform policies affecting the border region. Additionally, SBCC

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

6 Patrol, and advocates for accountability and transparency in the government policies and practices

7 that impact border communities.

8

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

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

10 emergency, in California, Arizona, New Mexico, and Texas. They recreate in and derive other

11 benefits from public lands, including areas for which border barrier funding has not been

12 appropriated or for which the deployment of funds has been prohibited. The ongoing and imminent

13 construction of border infrastructure, including the border wall and fencing, will restrict members’

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

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

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

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

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

19 that generate significant revenue.

20

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

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

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

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

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

25

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

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

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

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

5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 8 of 33

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

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

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

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

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

6 and advocacy. And it has responded to several calls from local officials, congressional

7 representatives, and the public about the President’s national emergency declaration and the impacts

8 it will have on the border lands and on border communities, providing information, guidance, and

9 support to organizations and individuals that depend on SBCC. The time and cost associated with

10 these activities has interfered with SBCC’s core advocacy regarding border militarization, Border

11 Patrol law-enforcement activities, and immigration reform. SBCC must take these actions in

12 furtherance of its mission to improve the quality of life in border communities.

13

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

14 his official capacity.

15

21. Defendant PATRICK M. SHANAHAN, Acting Secretary of Defense, is sued in his

16 official capacity. Acting Secretary Shanahan is responsible for ensuring that Department of Defense

17 actions comply with applicable laws. Acting Secretary Shanahan is responsible for carrying out the

18 diversion of military construction funds for the construction of the border wall under President

19 Trump’s declaration of national emergency.

20

22. Defendant KIRSTJEN M. NIELSEN, Secretary of Homeland Security, is sued in her

21 official capacity. Secretary Nielsen is responsible for ensuring that Department of Homeland

22 Security actions comply with applicable laws. Secretary Nielsen is responsible for carrying out the

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

24 national emergency.

25

23. Defendant STEVEN MNUCHIN, Secretary of the Treasury, is sued in his official

26 capacity. Secretary Mnuchin is responsible for carrying out the diversion of Treasury funds for the

27 construction of the border wall under President Trump’s declaration of national emergency.

28

6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 9 of 33

1

FACTUAL ALLEGATIONS

2

24. On February 15, 2019, President Trump declared a national emergency in order to

3 secure funding for his border wall. The President’s declaration came after a weeks-long stalemate

4 between the President and Congress, during which the President repeatedly threatened to declare a

5 national emergency if Congress did not fund the construction of the border wall to the extent and at

6 the pace the President preferred.

7

25. Contrary to the appropriations bills duly enacted by Congress for construction of

8 border barriers, which included specific limitations and “carve-out” areas, President Trump has

9 repeatedly stated that he will build a “big, beautiful” 1,000 mile-long wall along the U.S.-Mexico

10 border.

11

26. Congress’s latest appropriation for the border wall—enacted specifically in response

12 to the President’s call for action to end an impasse that included a six-week government shutdown—

13 included only $1.375 billion. In announcing his declaration of national emergency, however,

14 President Trump expressly disagreed with Congress’s appropriation decision and instead called for

15 more than $8 billion for border wall construction.

16
President Trump Has Repeatedly Failed to Secure from Congress his Desired Level of
17 Appropriations for Wall Construction.

18

27. Since taking office in 2017, President Trump and his executive branch officials have

19 sought appropriations to fund construction of the border wall. In its repeated appropriation requests,

20 the Trump administration has acknowledged that it cannot build a border wall without congressional

21 authorization.

22

28. In March 2017, the President asked Congress for $1.4 billion for the border wall for

23 the remainder of fiscal year 2017, and an additional $2.6 billion for fiscal year 2018. On May 1,

24 2017, Congress agreed on a bipartisan bill to fund the government through September 30, 2017.

25 Congress rejected the President’s request for wall funding, but increased spending on border security

26 by $1.5 billion. Three days after tweeting that the country “needs a good ‘shutdown’ in September,”

27 the President signed the bill on May 5, 2017.

28

7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 10 of 33

1

29. On March 23, 2018, Congress rejected the President’s request for $1.6 billion to build

2 a border wall in the Rio Grande Valley in South Texas. Congress instead allocated $1.6 billion for

3 border security including new technology and repairs to existing barriers, as well as $641 million for

4 about 33 miles of new fencing that had been authorized by the Secure Fence Act of 2006, Public

5 Law 109–367.

6

30. Congress did not accede to the President’s requests for more border wall funding

7 throughout the remainder of 2018.

8

9 President Trump Refuses to Sign a Congressional Appropriations Package that Does Not
Include his Desired Amount of Border Wall Funding and Threatens to Declare a National
10 Emergency.

11

31. On December 11, 2018, during his latest round of budget negotiations with Congress,

12 the President announced that he would be “proud” to shut down the government if he did not receive

13 his requested $5.7 billion in wall funding. When it was clear that both chambers of Congress would

14 pass funding legislation necessary to keep the federal government open, President Trump declared

15 that he would not sign any funding legislation—including legislation unanimously approved by the

16 Senate to keep the government funded through February 8, 2019—without $5 billion to build his

17 proposed border wall.

18

32. On December 21, 2018, the United States entered into a partial government

19 shutdown. The shutdown would last 35 days, making it the longest in the nation’s history. President

20 Trump threatened to draw the shutdown out for “a very long period of time—months or even

21 years”—unless Congress gave him the money he was demanding for the border wall.

22

33. As the shutdown ground on, President Trump attempted to strike a compromise. He

23 announced on January 19, 2019, that he was willing to temporarily extend the Deferred Action for

24 Childhood Arrivals and Temporary Protected Status programs in exchange for $5.7 billion for a

25 border wall. Democratic leaders rejected the proposal as a “non-starter” that merely put forth

26 previously rejected offers. They urged the President to open the government before beginning

27 negotiations over border security.

28

8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 11 of 33

1

34. Frustrated by Congress’s consistent rejection of his demand for funding, President

2 Trump threatened to declare a national emergency and build a wall without congressional approval.

3 According to the President, he could “call a national emergency and build it very quickly.”

4

35. For several weeks, President Trump repeated his threat to invoke a national

5 emergency to circumvent Congress’s funding authority. On January 9, 2019, he stated that “I have

6 an absolute right to do national emergency if I want,” and revealed that his “threshold” for invoking

7 the emergency would be if he “can’t make a deal with people that are unreasonable.”

8

36. On January 10, 2019, the President referred to ongoing negotiations with the House

9 and the Senate and said “If this doesn’t work out, probably I will [declare a national emergency]. I

10 would almost say definitely.” He explained that “[i]f we don’t make a deal, I would say 100 percent,

11 but I don’t want to say 100 percent,” and that “[i]f we don’t make a deal, I would say it would be

12 very surprising to me that I would not declare a national emergency and just fund it through the

13 various mechanisms.”

14

37. Despite encouragement from Senate Republicans to agree to reopen the government

15 for a short period to negotiate with Democrats, President Trump promised to remain steadfast in his

16 demands for a wall along the United States-Mexico border. He would not declare a national

17 emergency “so fast,” he said, because, although “[i]t’s the easy way out, . . . Congress should do it.”

18

38. On January 25, 2019, faced with worsening national gridlock as a result of the 35-day

19 shutdown, President Trump agreed to sign legislation that would keep the government open until

20 February 15, 2019. This stopgap legislation did not include any funding for a border wall and had

21 previously been rejected by the President.

22

39. In ending the government shutdown, the President stated that if he were unable to

23 “work with the Democrats and negotiate,” then “obviously we’ll do the emergency because that’s

24 what it is. It’s a national emergency.”

25

40. After the shutdown ended, a bipartisan committee of negotiators from the House and

26 Senate began work on a compromise appropriations bill that would include some funding for border

27 security. President Trump publicly expressed his skepticism that negotiations would be fruitful,

28

9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 12 of 33

1 declaring that the negotiators were “wasting their time” and that he would “get [the wall] built one

2 way or the other.”

3

41. On January 31, 2019, President Trump stated that “we’ve set the stage for what’s

4 going to happen on February 15 if a deal is not made.” The next day, he said “I think there’s a good

5 chance that we’ll have to do” an emergency proclamation.

6

42. As House and Senate negotiators deliberated over a deal to avert another government

7 shutdown, Trump administration officials started laying the groundwork for a possible national

8 emergency declaration. Acting White House Chief of Staff Mick Mulvaney stated that “[w]e’ll take

9 as much money as [Congress] can give us and then we’ll go off and find the money someplace

10 else…but [the wall] is going to get built with or without Congress.”

11

43. On February 11, 2019, congressional negotiators finalized a funding deal. The

12 agreement included $1.375 billion for fencing and other physical barriers along 55 miles of the U.S.-

13 Mexico border and included numerous restrictions on the timing and location of construction.

14

44. President Trump stated that he was “not happy” with Congress’s compromise deal

15 and would find “other methods” to finance a wall without explicit approval form Congress.

16
Congress Considered and Specifically Rejected the President’s Wall Funding Demands in
17 Enacting the Consolidated Appropriations Act of 2019.

18

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

19 2019.

20

46. Congress’s enactment of the Consolidated Appropriations Act of 2019 occurred

21 against a backdrop of its consideration and rejection of the President’s $5.7 billion border wall

22 demand. On December 20, 2018, the House of Representatives had passed a continuing resolution

23 that met the President’s request for $5.7 billion in border wall funding. The Senate did not pass the

24 same legislation. When both houses of Congress came to an agreement and enacted the Consolidated

25 Appropriations Act of 2019, they elected to exclude the President’s requested $5.7 billion in wall

26 funds.

27

47. The House Appropriations Committee Chair, Representative Nita Lowey, confirmed

28 that congressional negotiators considered, and “frankly, . . . denie[d] the President billions of dollars

10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 13 of 33

1 in funding for the concrete wall that he demanded.” Senator Patrick Leahy, Vice Chairman of the

2 Senate Appropriations Committee, who was actively involved in negotiations on the 2019

3 Consolidated Appropriations Act, stated “[t]he agreement does not fund President Trump’s wasteful

4 wall.” 165 Cong. Rec. S1362 (daily ed. Feb 14, 2019).

5

48. Congress’s appropriations judgment, as expressed in the law that passed both

6 chambers, is that only $1.375 billion should be used to construct a border wall, and that such a wall

7 must be limited geographically to the Rio Grande Valley Sector. The bill provided only a fraction of

8 the $5.7 billion that the President demanded for the border wall, allocating $1.375 billion for roughly

9 55 miles of pedestrian fencing in the Rio Grande Valley Sector of the southern border. The

10 appropriations act includes numerous carve-outs that prevent wall construction in parks and wildlife

11 areas, and requires the approval of local officials and a public comment period before initiating

12 construction in cities situated along the border.

13

49. Congress specifically prohibited the use of any appropriated funds in specific sections

14 of the Rio Grande Valley, forbidding the use of any funds to construct a barrier “(1) within the Santa

15 Ana Wildlife Refuge; (2) within the Bentsen-Rio Grande Valley State Park; (3) within La Lomita

16 Historical Park; (4) within the National Butterfly Center; or (5) within or east of the Vista del Mar

17 Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge.” Pub. Law No. 116-6 § 231.

18

50. In addition, Congress forbade the use of appropriated funds for construction within

19 the city limits of Roma, Texas; Rio Grande City, Texas; Escobares, Texas; La Grulla, Texas; and

20 within Salineño, Texas, until local elected officials and the public have had an opportunity to

21 comment on any plans for construction. Pub. Law No. 116-6 § 232.

22
President Trump Declares a National Emergency, Instructing his Secretaries of Defense and
23 Homeland Security to Construct his Wall in the Absence of Congressional Authorization.

24

51. President Trump stated that he would sign the appropriations bill and simultaneously

25 declare a national emergency. According to the President, $1.375 billion from Congress is “not so

26 much” for a border wall and the emergency declaration would allow him to supplement what

27 Congress has authorized “[s]o we have a chance of getting close to $8 billion [and] . . . build a lot of

28 wall.”

11 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 14 of 33

1

52. On February 15, 2019, President Trump declared a national emergency in order to

2 secure his preferred level of funding for his border wall. See “Presidential Proclamation on

3 Declaring a National Emergency Concerning the Southern Border of the United States” (“the

4 Proclamation”).

5

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

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

7 “I wanted to do it faster. I could do the wall over a longer period of time. I didn’t need to do this, but

8 I’d rather do it much faster.”

9

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

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

11 wall, [Congress] skimped.”

12

55. The President also expressed his disdain for Congress’s decision to include carve-out

13 areas where wall construction is prohibited, and emphasized the importance of a contiguous wall.

14 “The only weakness is they [individuals crossing the southern border] go to a wall and then they go

15 around the wall. They go around the wall and in . . . . They go through areas where you have no

16 wall.”

17

56. The President acknowledged that he “went through Congress . . . made a deal . . . got

18 almost $1.4 billion” and was “successful, in that sense.” Explaining his declaration of national

19 emergency, he stated that he “could do the wall over a longer period of time” using congressionally

20 authorized funds but that he’d “rather do it much faster.”

21

57. The President’s senior policy advisor, Stephen Miller, confirmed that emergency and

22 supplemental funding would allow for the construction of “hundreds of miles” of border wall by

23 September 2020—much faster than congressionally authorized funding would allow.

24

58. In describing the nature of the purported national emergency, the text of the

25 Proclamation (attached and incorporated herein as Exhibit A) refers to a “long-standing” problem of

26 “large-scale unlawful migration through the southern border” that has “worsened” in recent years

27 due to “sharp increases in the number of family units entering and seeking entry to the United States

28 and an inability to provide detention space” for them. It further states that these family units “are

12 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 15 of 33

1 often released into the country and are often difficult to remove from the United States because they

2 fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to

3 locate.”

4

59. The Proclamation states that “[b]ecause of the gravity of the current emergency

5 situation, it is necessary for the Armed Forces to provide additional support to address the crisis.”

6 The Proclamation further states “that this emergency requires use of the Armed Forces and, in

7 accordance with section 301 of the National Emergencies Act (50 U.S.C. § 1631), that the

8 construction authority provided in section 2808 of title 10, United States Code, is invoked and made

9 available, according to its terms, to the Secretary of Defense.”

10

60. The Proclamation directs the Secretary of Defense, pursuant to 10 U.S.C. § 2808, to

11 order members of the Ready Reserve to “assist and support the activities of the Secretary of

12 Homeland Security at the southern border” and orders the Secretaries of Defense and Homeland

13 Security, “if necessary,” to take action for “transfer and acceptance of jurisdiction over border

14 lands.”

15

61. According to a “fact sheet” issued by the White House, entitled “President Donald J.

16 Trump’s Border Security Victory,” the President has identified $3.6 billion to be reallocated from

17 Department of Defense military construction projects pursuant to 10 U.S.C. § 2808, $601 million to

18 be reallocated from the Treasure Forfeiture Fund, and $2.5 billion to be reallocated from Department

19 of Defense funds for counterdrug activities. The use of such funds was duly limited by Congress to

20 specific purposes pursuant to its authority under the Constitution.

21

62. The President intends to spend approximately $8.1 billion for construction of the

22 border wall, many times the $1.375 billion appropriated by Congress.

23

63. The President’s unlawful reallocation of military construction funds will jeopardize

24 construction projects at military bases and sites across the country, including in this District and

25 throughout California.

26

64. The Trump administration has explained that the President’s previous $5.7 billion

27 request for border wall construction will “fund construction of a total of approximately 234 miles of

28 new physical barrier and fully fund the top 10 priorities in CBP’s Border Security Improvement

13 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 16 of 33

1 Plan.” See Jan. 6, 2019 letter from Russell T. Vought, OMB Acting Director, to Senator Richard

2 Shelby, Appropriations Committee Chairman.

3

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

5

65. Through the expenditure of diverted emergency funds in 2019, the administration

6 expects to continue with construction of “more than 330 miles of border wall in the U.S. Border

7 Patrol’s highest priority locations across the Southwest border.” This includes areas all along the

8 U.S.-Mexico border in which construction is ongoing. It also includes areas for which the

9 Department of Homeland Security plans have been announced, contracts have been awarded,

10 resources have been mobilized, or waivers have been issued.

11

66. According to the Department of Homeland Security, in 2019 it will commence

12 construction of 215 miles of border wall. This construction will occur in ecologically sensitive

13 habitats and other border lands known for their outstanding hiking, wildlife viewing, photography,

14 and wilderness values. For example, the Department of Homeland Security has notified the public it

15 intends to commence wall construction in California’s San Diego and El Centro Sectors; Arizona’s

16 Yuma Sector; New Mexico’s El Paso Sector; and, Texas’s Laredo and Rio Grande Valley Sectors.

17

67. Examples of the environmental consequences can be seen in California’s San Diego

18 and El Centro Sectors, where border wall construction would be devastating. Any new wall

19 construction in these areas would be in or near the Otay Mountain Wilderness Area and the Jacumba

20 Wilderness Area. These areas are habitat to more than 100 sensitive plant and animal species that are

21 listed as “endangered,” “threatened,” or “rare” under the federal Endangered Species Act of 1973, 16

22 U.S.C. § 1531 et seq., and/or the California Endangered Species Act, Cal. Fish & Game Code § 2050

23 et seq. For example, the federally and state-endangered Peninsular Desert Bighorn sheep has a range

24 that includes mountainous terrain in Mexico near the United States-Mexico border and extends north

25 across the border through the Jacumba Wilderness to California’s Anza-Borrego State Park.

26

68. Likewise, construction is imminent in the Rio Grande Valley in Texas,

27 notwithstanding Congress’s decision to prevent the Trump administration from building a wall in

28 five areas nationally recognized for their ecological and recreational value. The administration’s

14 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 17 of 33

1 commitment to construct border walls in the Rio Grande Valley Sector means these areas are

2 threatened with irreversible damage despite express Congressional direction to preserve them. Initial

3 construction activities include accessing the project area with heavy equipment, creating and using

4 staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and

5 upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features,

6 lighting, cameras, and sensors. As a result of border wall construction, local communities would be

7 more vulnerable to flooding, divided by border wall infrastructure, and suffer irreparable damage to

8 cultural, historic, and recreational sites.

9

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

10 not appropriated by Congress to expand and expedite the border wall has injured the Sierra Club and

11 SBCC. Both organizations have been compelled to respond to the declared emergency to safeguard

12 their and their members’ interests, including by diverting resources from the organizations’

13 campaigns to unveil ongoing and imminent construction, educate their members, and respond to

14 threats to their organizational missions. Staff and affiliates have participated in grassroots advocacy,

15 engaged in rapid-response political outreach and advocacy with congressional and local elected

16 officials, and responded to requests from their members, the public, and elected officials about the

17 threat and implementation of unlawful expedited construction. The circumvention of legal processes,

18 lack of transparency, notice, and consultation, have frustrated the organizations’ efforts to work

19 towards their missions on behalf of their members.

20

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

21 environment and local communities that complies with NEPA.

22
LEGAL BACKGROUND
23
The Constitution Vests Congress with Exclusive Authority to Determine the Appropriation of
24 Public Funds.

25

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

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

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

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

15 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 18 of 33

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

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

3 appropriations laws. Except as specifically authorized by Congress, the Executive Branch has no

4 authority to expend public funds that have not been thus appropriated.

5

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

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

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

8 Money shall be published from time to time.”

9

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

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

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

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

13

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

14 agency, program, or government function. Congressional authorization of a program, however, does

15 not confer power on the Executive Branch to expend public funds. Only a specific appropriations

16 law can do that.

17

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

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

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

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

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

22

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

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

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

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

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

27 and expressly so provide.

28

16 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 19 of 33

1

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

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

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

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

5 amount of funding after careful consideration.

6

78. Temporary appropriations also reinforce and further Congress’ constitutional

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

8 Branch, as the Framers intended.

9
The Constitution Does Not Allow Appropriations to be Made by Executive Fiat, Rather than
10 By Law.

11

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

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

13 333 (1910). If the Executive Branch spends money in violation of an appropriation law, “it would be

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

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

16

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

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

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

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

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

21

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

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

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

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

25

26

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

27

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

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

17 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 20 of 33

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

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

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

4

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

5 by Congress. “There is no provision in the Constitution that authorizes the President to enact, to

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

7 back to the founding: “Our first President understood the text of the Presentment Clause as requiring

8 that he either approve all the parts of a Bill, or reject it in toto.” Id. at 440 (quotation marks omitted).

9

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

10 the Congress the opportunity to consider his objections and to pass the bill despite his disapproval.”

11 Wright v. United States, 302 U.S. 583, 596 (1938).

12

13

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

14

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

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

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

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

18 forces.” 10 U.S.C. § 2808.

19

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

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

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

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

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

24

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

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

26 abroad and for protection of weapons of mass destruction.

27

28

18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 21 of 33

1

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

2

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

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

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

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

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

7

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

8 funding balance struck by Congress, by permanently reallocating funding levels between the

9 Department of Defense and other agencies. Accordingly, 10 U.S.C. § 277 provides that “to the

10 extent otherwise required by section 1535 of title 31 (popularly known as the “Economy Act”) or

11 other applicable law, the Secretary of Defense shall require a civilian law enforcement agency to

12 which support is provided under this chapter to reimburse the Department of Defense for that

13 support.”

14

15

Congress Did Not Permit the President to Use the Treasury Forfeiture Fund as an Unrestricted Slush Fund.

16

90. Congress established the Department of the Treasury Forfeiture Fund to permit the

17 use of forfeited funds for specifically delineated law enforcement purposes. See 31 U.S.C. § 9705.

18

91. These purposes range from the payment of “compensation to informers,” “payment

19 for services of experts and consultants needed by a Department of Treasury law enforcement

20 organization to carry out the organization’s duties relating to seizure and forfeiture,” and similar

21 expenditures relating to the seizure and forfeiture program. 31 U.S.C § 9705(a).

22

92. Congress did not authorize use of the Treasury Forfeiture Fund to pay for

23 construction of a border wall.

24

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

26

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

27 1500.1(a) (1978). It was enacted with the ambitious objectives of “encourag[ing] productive and

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

19 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 22 of 33

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

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

3 Nation . . . .” 42 U.S.C. § 4321.

4

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

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

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

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

8

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

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

10 4342, 4344; 40 C.F.R. §§ 1500–1508 (1978).

11

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

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

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

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

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

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

17

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

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

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

20 concerning significant environmental impacts; it also guarantees that the relevant information will be

21 made available to the larger audience that may also play a role in both the decision-making process

22 and the implementation of that decision.” Methow Valley Citizens Council, 490 U.S. at 349.

23

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

24 the earliest possible time to insure that planning and decisions reflect environmental values, to avoid

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

26 1502.5 (“An agency shall commence preparation of an [EIS] as close as possible to the time the

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

28

20 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 23 of 33

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

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

3

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

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

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

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

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

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

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

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

11

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

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

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

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

15

101. The Department of Homeland Security has not promulgated regulations to implement

16 NEPA, but has issued an Instruction Manual. Instruction Manual 023-01-001-01, Revision 01,

17 Implementation of NEPA (Nov. 6, 2014) (“DHS NEPA Manual”). The Manual specifically includes

18 “proposed construction, land use, activity, or operation that has the potential to significantly affect

19 environmentally sensitive areas” as an action “normally requiring” the preparation of at least an EA.

20

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

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

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

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

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

25 components that process applications for Department of Homeland Security funding or approval,

26 “have a responsibility to integrate NEPA requirements early in the application process,” and to

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

28 proposal.

21 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 24 of 33

1

103. 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

104. 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 that

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

9

105. 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

106. 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

107. 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 citations

24 omitted).

25

DECLARATORY AND INJUNCTIVE RELIEF

26

108. Plaintiffs will suffer irreparable injury if Defendants take action to build a wall in

27 reliance on the Proclamation, or in implementing the President’s direction to use funds pursuant to

28 10 U.S.C. §§ 284, 2808 and 31 U.S.C § 9705, and Plaintiffs have no adequate remedy at law.

22 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 25 of 33

1

CLAIMS FOR RELIEF

2

FIRST CLAIM FOR RELIEF

(The Consolidated Appropriations Act of 2019, Pub. Law No. 116-6)
3

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

4

scope of their constitutional and/or statutory authority.

5

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

6

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

7

2019. Congress’s appropriations judgment is that only $1.375 billion should be used to construct a

8

border wall, that such a wall must be limited geographically to 55 miles within the Rio Grande

9

Valley Sector, and that construction of a border wall should not proceed at this time with respect to

10

numerous areas specifically described in the law.

11

111. Congress enacted the Consolidated Appropriations Act of 2019 against the backdrop

12

of the President’s continued demand for $5.7 billion in unrestricted border wall funding for

13

construction of a contiguous barrier between the United States and Mexico. “Congress has expressed

14

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

15

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

16

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

17

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

18

to build a wall across the border, in purported reliance on a patchwork of older, more general statutes

19

that are silent on wall construction.

20

113. The statutes the President purports to rely on, 10 U.S.C. §§ 284, 2808 and 31 U.S.C

21

§ 9705, do not authorize wall construction outside of the limited geographic, monetary, and

22

scheduling bounds set by Congress in the Consolidated Appropriations Act of 2019.

23

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

24

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

25

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

26

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

27

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

28

23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 26 of 33

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

2 (quotations and citations omitted; brackets in original).

3

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

4 to construct the border wall violates the Consolidated Appropriations Act of 2019. It funds the wall

5 in excess of the amount established by Congress and it denies funds from other projects that

6 Congress chose to fund.

7

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

8 10 U.S.C. § 2808 because it does not identify an emergency requiring use of the armed forces.

9

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

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

11 project supporting the armed forces.

12

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

13 Consolidated Appropriations Act of 2019.

14

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

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

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

17

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

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

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

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

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

22

121. In addition, use of funds under 10 U.S.C. § 284 to construct the border wall is

23 contrary to Congress’s judgment in the Consolidated Appropriations Act of 2019 because funds not

24 appropriated for wall construction cannot be reimbursed to the Department of Defense under 10

25 U.S.C. § 277.

26

122. Use of the Treasury Forfeiture Fund under 31 U.S.C. § 9705 to construct the border

27 wall violates the Consolidated Appropriations Act of 2019. Congress did not authorize use of the

28 Treasury Forfeiture Fund to pay for construction of a border wall, and any general authorization for

24 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 27 of 33

1 use of funds in that statute must be interpreted against Congress’s more specific passage of the

2 Consolidated Appropriations Act of 2019.

3

123. 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

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

8

125. 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

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

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

12 2019.

13

127. 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

128. “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 itself

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

19 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 in

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

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

23 609 (Frankfurter, J., concurring).

24

129. Because the statutes the President purports to rely on, 10 U.S.C. §§ 284, 2808 and 31

25 U.S.C § 9705, do not authorize wall construction outside of the limited geographic, monetary, and

26 scheduling bounds set by Congress in the Consolidated Appropriations Act of 2019, the use of those

27 statutes to fund border wall construction usurps Congress’s legislative authority and violates the

28 Constitution’s separation of powers.

25 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 28 of 33

1

THIRD CLAIM FOR RELIEF

2

(Appropriations Clause, Article I, Section 9, Clause 7 of the Constitution)

3

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

4

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

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

6

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

7 $1.375 billion for border wall construction.

8

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

9 2808 and 31 U.S.C § 9705 to order that billions more be spent on the wall than provided in those

10 legislative appropriations. The President has ordered the Secretaries of Defense and Homeland

11 Security to implement his determination that additional billions be spent on construction of the

12 border wall.

13

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

14 by statutes that provide authority for emergency proclamations.

15

135. Congress cannot give the President authority to contravene restrictions on the use of

16 Treasury funds for construction of a border wall, contained within an appropriations law that

17 Congress has passed and the President has signed.

18

136. To the extent that 10 U.S.C. §§ 284 and 2808 and 31 U.S.C § 9705 authorize the

19 President to allocate money from the Department of the Treasury by executive proclamation, rather

20 than by law, and in contravention of restrictions contained in Congress’s appropriations’ laws, they

21 violate the Constitution.

22
FOURTH CLAIM FOR RELIEF

23

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

24

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

25

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

26 the President has only two options: he must sign it, or return it with his objections so that Congress 27 may consider them.

28

26 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 29 of 33

1

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

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

3 his liking.

4

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

5 by Congress, including by improperly relying on an emergency proclamation to lift restrictions

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

7 Presentment Clause.

8

141. To the extent that 10 U.S.C. §§ 284 and 2808 and 31 U.S.C § 9705 authorize the

9 President to modify or repeal Congress’s appropriations legislation by executive proclamation, rather

10 than by law, they violate the Constitution.

11

FIFTH CLAIM FOR RELIEF

12

(National Environmental Policy Act, 42 U.S.C. § 4332)

13

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

14

143. The Secretaries of Defense, Homeland Security, and the Treasury must ensure that

15 their agencies prepare an environmental impact statement on major Federal actions “significantly

16 affecting the quality of the human environment,” and prepare an environmental assessment to

17 determine whether any such significant effects exist. Robertson v. Methow Valley Citizen Council, 18 490 U.S. 332, 348 (1989); Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000); 42 U.S.C. §

19 4332(2)(C). A federal agency “bears the primary responsibility to ensure that it complies with

20 NEPA.” ’Ilio’Ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006). “When an agency

21 decides to proceed with an action in the absence of an EA or EIS, the agency must adequately

22 explain its decision.” Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999).

23

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

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

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

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

27 may be interested or affected”). 28

27 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 30 of 33

1

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

2 obligations under NEPA.

3

146. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

4 Mnuchin violate NEPA and NEPA’s implementing regulations by authorizing border wall

5 construction without first conducting the necessary environmental analysis of the impacts of the

6 actions in an EA or EIS, or a programmatic EIS, in light of the potentially significant impacts that

7 the action will have, including both cumulative effects and the effects of connected actions.

8

147. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

9 Mnuchin further violate NEPA and NEPA’s implementing regulations by failing to initiate and

10 complete NEPA at the earliest possible time in the planning process.

11

148. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

12 Mnuchin have utterly failed and/or refused to involve the public in its decision-making processes for

13 border construction. This failure to provide for any public participation in relation to their approval

14 of border wall construction violates NEPA and its implementing regulations.

15

SIXTH CLAIM FOR RELIEF

16

(Ultra Vires)

17

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

18

150. Defendants are acting ultra vires in seeking to divert funding pursuant to 10 U.S.C. §

19 2808 for failure to meet the criteria required under that statute. There is no emergency requiring the

20 use of the armed forces along the U.S.-Mexico border, construction of a border wall is not a

21 “military construction project,” and construction of a border wall is not “necessary to support such

22 use of the armed forces.”

23

151. Defendants are acting ultra vires in seeking to divert funding pursuant to 10 U.S.C. §

24 284 for failure to meet the criteria required under that statute. Construction of the border wall does

25 not constitute the construction of a road or fence to block “drug smuggling corridors.” In addition,

26 use of funds under 10 U.S.C. § 284 to construct the border wall in the face of Congress’s judgment

27 that additional money should not be spent on the wall would violate the Consolidated Appropriations

28

28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 31 of 33

1 Act of 2019 because such money, having not been appropriated for wall construction, cannot be

2 reimbursed to the Department of Defense under 10 U.S.C. § 277.

3

152. Defendants are acting ultra vires in seeking to divert funding pursuant to 31 U.S.C. §

4 9705 because they fail to meet the criteria required under that statute. Congress did not authorize use

5 of the Treasury Forfeiture Fund to pay for construction of a border wall, and the general

6 authorization for use of funds in that statute is controlled by Congress’s more specific passage of the

7 Consolidated Appropriations Act of 2019.

8

9

PRAYER FOR RELIEF

10 WHEREFORE, Plaintiffs pray that this Court:

11

(A) Declare the President’s direction that the Defense Department reallocate funds to

12

support construction of a border wall under 10 U.S.C. § 2808 to be ultra vires, in

13

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

14

on legislative authority, a violation of the Presentment Clause, and invalid;

15

(B) Enjoin Defendants Shanahan, Nielsen, and Mnuchin from taking action to build a

16

border wall using funds from the Defense Department or Treasury Asset Forfeiture

17

Fund, or on any basis that depends on the President’s unlawful emergency

18

declaration;

19

(C) Declare that Defendants Shanahan, Nielsen, and Nielsen have violated NEPA and its

20

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

21

to conduct any NEPA analysis, failing to provide any opportunity for public

22

participation, and failing to take a “hard look” at the potential environmental impacts

23

of the border wall project;

24

(D) Enjoin Defendants Shanahan, Nielsen, and Mnuchin from implementing the border

25

wall project until and unless Defendants comply with NEPA, the Endangered Species

26

Act, and the implementing regulations for those laws;

27

28

29 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 32 of 33

1

(E) Award Plaintiffs their reasonable costs of litigation, including reasonable attorneys’

2

fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 and/or

3

other authority; and

4

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

5 Dated: February 19, 2019 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Cecillia D. Wang____________
Dror Ladin* Noor Zafar* Hina Shamsi* Omar C. Jadwat* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2660 Fax: (212) 549-2564 dladin@aclu.org nzafar@aclu.org hshamsi@aclu.org ojadwat@aclu.org
Cecillia D. Wang (SBN 187782) American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwang@aclu.org
Sanjay Narayan (SBN 183227)** Gloria D. Smith (SBN 200824)** Sierra Club Environmental Law Program 2101 Webster Street, Suite 1300 Oakland, CA 94612 Tel: (415) 977-5772 sanjay.narayan@sierraclub.org gloria.smith@sierraclub.org
Mollie M. Lee (SBN 251404) Christine P. Sun (SBN 218701) American Civil Liberties Union Foundation of
Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel: (415) 621-2493 Fax: (415) 255-8437 mlee@aclunc.org csun@aclunc.org

30 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

Case 4:19-cv-00892-KAW Document 1 Filed 02/19/19 Page 33 of 33

1

David Donatti*

Andre I. Segura (SBN 247681)_

2

American Civil Liberties Union Foundation

of Texas

3

P.O. Box 8306

Houston, TX 77288

4

Tel: (713) 325-7011

Fax: (713) 942-8966

5

ddonatti@aclutx.org

asegura@aclutx.org
6

7

Counsel for Plaintiffs

8

*Application for admission pro hac vice

9

forthcoming **Counsel for Plaintiff Sierra Club

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: __________

 
 Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 1 of 40

1 DROR LADIN*

NOOR ZAFAR*

2 HINA SHAMSI*

OMAR C. JADWAT*

3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

125 Broad Street, 18th Floor

4 New York, NY 10004

Tel.: (212) 549-2660

5 Fax: (212) 549-2564

dladin@aclu.org

6 nzafar@aclu.org

hshamsi@aclu.org

7 ojadwat@aclu.org

*Admitted pro hac vice

8

CECILLIA D. WANG (SBN 187782)

9 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

39 Drumm Street

10 San Francisco, CA 94111

Tel.: (415) 343-0770

11 Fax: (415) 395-0950

cwang@aclu.org

12

SANJAY NARAYAN (SBN 183227)**

13 GLORIA D. SMITH (SBN 200824)**

SIERRA CLUB ENVIRONMENTAL LAW PROGRAM

14 2101 Webster Street, Suite 1300

Oakland, CA 94612

15 Tel.: (415) 977-5772

sanjay.narayan@sierraclub.org

16 gloria.smith@sierraclub.org

**Counsel for Plaintiff SIERRA CLUB

17

Attorneys for Plaintiffs (Additional counsel listed on following page)

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO-OAKLAND DIVISION

20

SIERRA CLUB and SOUTHERN BORDER

21 COMMUNITIES COALITION,

22

Plaintiffs,

Case No.: 4:19-cv-00892-HSG

23

v.

24 DONALD J. TRUMP, President of the United
States, in his official capacity; PATRICK M.
25 SHANAHAN, Acting Secretary of Defense, in his
official capacity; KIRSTJEN M. NIELSEN,
26 Secretary of Homeland Security, in her official
capacity; and STEVEN MNUCHIN, Secretary of
27 the Treasury, in his official capacity,

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Defendants.

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 2 of 40
1 Additional counsel for Plaintiffs:
2 MOLLIE M. LEE (SBN 251404)
CHRISTINE P. SUN (SBN 218701)
3 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street
San Francisco, CA 94111
5 Tel.: (415) 621-2493
Fax: (415) 255-8437
6 mlee@aclunc.org
csun@aclunc.org
7
DAVID DONATTI*
8 ANDRE I. SEGURA (SBN 247681)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
9 OF TEXAS
P.O. Box 8306
10 Houston, TX 77288
Tel.: (713) 325-7011
11 Fax: (713) 942-8966
ddonatti@aclutx.org
12 asegura@aclutx.org 13 *Admitted pro hac vice
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 3 of 40

1

INTRODUCTION

2

1. On February 15, 2019, President Donald Trump invoked his authority under the

3 National Emergencies Act, 50 U.S.C. §§ 1601–1651, to declare a national emergency and divert

4 billions of dollars appropriated for other purposes to carry out his campaign promise to build a wall

5 along the U.S.-Mexico border.

6

2. The President’s declaration was made solely out of disagreement with Congress’s

7 decision about the proper funding level, location, and timetable for constructing a border wall. On

8 the same day that President Trump signed his declaration, he also signed an act of Congress

9 appropriating only $1.375 billion for the border wall. The law Congress passed not only denied the

10 President the additional billions he had demanded, but also imposed substantial restrictions on the

11 location and timing of border wall construction.

12

3. In announcing his declaration of a national emergency, the President stated, “I don’t

13 need to do this,” but explained that he preferred to build the border wall faster than Congress’s

14 appropriation would allow.

15

4. The President’s declaration plainly states that the invocation of an emergency is to

16 address a “long-standing” problem of “large-scale unlawful migration through the southern border”

17 and the President’s opinion that the number of families seeking asylum at the U.S.-Mexico border

18 presents an “emergency.” In fact, there was and is no national emergency to justify the President’s

19 action, only his disagreement with Congress’s duly enacted decisions on the extent and pace of

20 spending on the border wall.

21

5. On its face, the declaration does not meet the requirements of the statutory

22 authorization that the President invokes, 10 U.S.C. § 2808. That law, duly enacted by Congress,

23 provides that the President may declare an emergency to deploy military construction funds “that are

24 necessary to support such [emergency] use of the armed forces.” The declaration does not set forth

25 any actual emergency, any use of the armed forces required to address such an emergency, or how a

26 diversion of military construction funds is necessary to support the use of the armed forces of the

27 United States. The President has also instructed his subordinates to divert additional sources of

28

1 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 4 of 40

1 Departments of Defense and Treasury funds that Congress restricted for other purposes, in an effort

2 to secure the appropriations that Congress denied him for the border wall.

3

6. Neither a declaration of emergency nor the Defense and Treasury funding statutes the

4 administration has invoked permit the President to disregard Congress’s enacted appropriations

5 legislation. The President’s actions violate both those statutes and the Constitution.

6

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

7 President’s unlawful declaration of a national emergency and bring this action seeking declaratory

8 and injunctive relief and other remedies as set forth below.

9

JURISDICTION AND VENUE

10

8. This case arises under the Consolidated Appropriations Act of 2019, Pub. Law No.

11 116-6; Article I, section 9, clause 7 of the U.S. Constitution; Article I, section 7 of the U.S.

12 Constitution; the National Environmental Policy Act, 42 U.S.C. § 4332; the Administrative

13 Procedures Act, 5 U.S.C. §§ 701–706, and other acts of Congress. This Court has subject matter

14 jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), 1651 (All Writs Act) and

15 2201 (declaratory relief).

16

9. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of

17 the United States and officers of the United States acting in their official capacity and (1) at least one

18 plaintiff resides in this district; and/or (2) a substantial part of the events or omissions giving rise to

19 the claims occurred in this district.

20

10. In addition to the harm caused to Plaintiff Sierra Club described below, the

21 challenged action will have an impact throughout the Northern District of California, including in

22 Contra Costa County and Monterey County, where the Department of Defense maintains several

23 bases and facilities. The challenged action jeopardizes millions of dollars of Department of Defense

24 funding for constructions projects at military bases in this District.

25

PARTIES

26

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

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

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

2 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 5 of 40

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

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

3 Many of Sierra Club’s members reside, work, recreate, and/or enjoy areas along the border of the

4 United States and Mexico. Sierra Club has more than 400,000 members in California, over 9,700 of

5 whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon Chapter, which covers the State

6 of Arizona, has more than 16,000 members. Sierra Club’s Rio Grande Chapter includes over 10,000

7 members in New Mexico and West Texas. Sierra Club’s Lone Star Chapter, which covers the State

8 of Texas, has more than 26,100 members, more than 440 of whom live in the Lower Rio Grande

9 Valley.

10

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

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

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

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

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

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

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

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

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

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

20

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

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

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

23 scientific, recreational, and aesthetic uses. Among the areas visited by Sierra Club members are: the

24 Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness

25 Area (California), the Sonoran Desert (Arizona), Cabeza Prieta National Wildlife Refuge (Arizona),

26 the Chihuahan Desert (New Mexico), Santa Ana National Wildlife Refuge (Texas), the Lower Rio

27 Grande Valley National Wildlife Refuge (Texas), Bentsen-Rio Grande Valley State Park (Texas), La

28 Lomita Historical Park (Texas), and the National Butterfly Center (Texas). Sierra Club members

3 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 6 of 40

1 also reside, work, and recreate in and around cities and towns affected by the border wall, including

2 but not limited to Santa Teresa, New Mexico; San Ysidro and Imperial Beach, California; Roma,

3 Texas; Rio Grande City, Texas; Escobares, Texas; La Grulla, Texas; and Salineño, Texas.

4

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

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

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

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

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

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

10 for the very purpose of protecting the places, species, and values Sierra Club members work to

11 protect. The requested relief will redress these injuries.

12

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

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

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

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

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

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

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

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

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

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

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

23 Texas to oppose continued wall construction. As a result of the President’s emergency declaration,

24 Sierra Club has also redirected staff and volunteers within its California offices to investigate and

25 assess the extent of construction activities along the border in those areas outside those delineated by

26 congressional appropriations, and the impacts of those activities.

27

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

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

4 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 7 of 40

1 brings together 60 organizations from California, Arizona, New Mexico, and Texas to promote

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

3 enforcement policies that respect human dignity and human rights and prevent loss of life, as well as

4 rational and humane immigration-reform policies affecting the border region. Additionally, SBCC

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

6 Patrol, and advocates for accountability and transparency in the government policies and practices

7 that impact border communities.

8

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

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

10 emergency, in California, Arizona, New Mexico, and Texas. They recreate in and derive other

11 benefits from public lands, including areas for which border barrier funding has not been

12 appropriated or for which the deployment of funds has been prohibited. The ongoing and imminent

13 construction of border infrastructure, including the border wall and fencing, will restrict members’

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

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

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

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

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

19 that generate significant revenue.

20

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

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

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

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

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

25

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

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

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

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

5 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 8 of 40

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

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

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

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

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

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

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

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

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

10 declaration and the impacts it will have on the border lands and on border communities. In doing so,

11 it has provided information, guidance, and support to organizations and individuals that depend on

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

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

14 the majority of SBCC staff’s time, thereby interfering with SBCC’s core advocacy regarding border

15 militarization, Border Patrol law-enforcement activities, and immigration reform. SBCC must take

16 these actions in furtherance of its mission to protect and improve the quality of life in border

17 communities.

18

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

19 his official capacity.

20

21. Defendant PATRICK M. SHANAHAN, Acting Secretary of Defense, is sued in his

21 official capacity. Acting Secretary Shanahan is responsible for ensuring that Department of Defense

22 actions comply with applicable laws. Acting Secretary Shanahan is responsible for carrying out the

23 diversion of military construction funds for the construction of the border wall under President

24 Trump’s declaration of national emergency.

25

22. Defendant KIRSTJEN M. NIELSEN, Secretary of Homeland Security, is sued in her

26 official capacity. Secretary Nielsen is responsible for ensuring that Department of Homeland

27 Security actions comply with applicable laws. Secretary Nielsen is responsible for carrying out the

28

6 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 9 of 40

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

2 national emergency.

3

23. Defendant STEVEN MNUCHIN, Secretary of the Treasury, is sued in his official

4 capacity. Secretary Mnuchin is responsible for carrying out the diversion of Treasury funds for the

5 construction of the border wall under President Trump’s declaration of national emergency.

6

7

FACTUAL ALLEGATIONS

8

24. On February 15, 2019, President Trump declared a national emergency in order to

9 secure funding for his border wall. The President’s declaration came after a weeks-long stalemate

10 between the President and Congress, during which the President repeatedly threatened to declare a

11 national emergency if Congress did not fund the construction of the border wall to the extent and at

12 the pace the President preferred.

13

25. Contrary to the appropriations bills duly enacted by Congress for construction of

14 border barriers, which included specific limitations and “carve-out” areas, President Trump has

15 repeatedly stated that he will build a “big, beautiful” 1,000 mile-long wall along the U.S.-Mexico

16 border.

17

26. Congress’s latest appropriation for the border wall—enacted specifically in response

18 to the President’s call for action to end an impasse that included a six-week government shutdown—

19 included only $1.375 billion. In announcing his declaration of national emergency, however,

20 President Trump expressly disagreed with Congress’s appropriation decision and instead called for

21 more than $8 billion for border wall construction.

22
President Trump Has Repeatedly Failed to Secure from Congress his Desired Level of
23 Appropriations for Wall Construction.

24

27. Since taking office in 2017, President Trump and his executive branch officials have

25 sought appropriations to fund construction of the border wall. In its repeated appropriation requests,

26 the Trump administration has acknowledged that it cannot build a border wall without congressional

27 authorization.

28

7 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 10 of 40

1

28. In March 2017, the President asked Congress for $1.4 billion for the border wall for

2 the remainder of fiscal year 2017, and an additional $2.6 billion for fiscal year 2018. On May 1,

3 2017, Congress agreed on a bipartisan bill to fund the government through September 30, 2017.

4 Congress rejected the President’s request for wall funding, but increased spending on border security

5 by $1.5 billion. Three days after tweeting that the country “needs a good ‘shutdown’ in September,”

6 the President signed the bill on May 5, 2017.

7

29. On March 23, 2018, Congress rejected the President’s request for $1.6 billion to build

8 a border wall in the Rio Grande Valley in South Texas. Congress instead allocated $1.6 billion for

9 border security including new technology and repairs to existing barriers, as well as $641 million for

10 about 33 miles of new fencing that had been authorized by the Secure Fence Act of 2006, Public

11 Law 109–367.

12

30. Congress did not accede to the President’s requests for more border wall funding

13 throughout the remainder of 2018.

14

15 President Trump Refuses to Sign a Congressional Appropriations Package that Does Not

16

Include his Desired Amount of Border Wall Funding and Threatens to Declare a National Emergency.

17

31. On December 11, 2018, during his latest round of budget negotiations with Congress,

18 the President announced that he would be “proud” to shut down the government if he did not receive

19 his requested $5.7 billion in wall funding. When it was clear that both chambers of Congress would

20 pass funding legislation necessary to keep the federal government open, President Trump declared

21 that he would not sign any funding legislation—including legislation unanimously approved by the

22 Senate to keep the government funded through February 8, 2019—without $5 billion to build his

23 proposed border wall.

24

32. On December 21, 2018, the United States entered into a partial government

25 shutdown. The shutdown would last 35 days, making it the longest in the nation’s history. President

26 Trump threatened to draw the shutdown out for “a very long period of time—months or even

27 years”—unless Congress gave him the money he was demanding for the border wall.

28

8 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 11 of 40

1

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

2 communicated to the congressional Committees on Appropriation that “[t]he President requests $5.7

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

4 of a total of approximately 234 miles of new physical barrier and fully fund the top 10 priorities in

5 CBP’s Border Security Improvement Plan.” The letter stated that “a physical barrier—wall—creates

6 an enduring capability that helps field personnel stop, slow down, and/or contain illegal entries.”

7

34. Frustrated by Congress’s consistent rejection of his demand for funding, President

8 Trump threatened to declare a national emergency and build a wall without congressional approval.

9 According to the President, he could “call a national emergency and build it very quickly.”

10

35. For several weeks, President Trump repeated his threat to invoke a national

11 emergency to circumvent Congress’s funding authority. On January 9, 2019, he stated that “I have

12 an absolute right to do national emergency if I want,” and revealed that his “threshold” for invoking

13 the emergency would be if he “can’t make a deal with people that are unreasonable.”

14

36. On January 10, 2019, the President referred to ongoing negotiations with the House

15 and the Senate and said “If this doesn’t work out, probably I will [declare a national emergency]. I

16 would almost say definitely.” He explained that “[i]f we don’t make a deal, I would say 100 percent,

17 but I don’t want to say 100 percent,” and that “[i]f we don’t make a deal, I would say it would be

18 very surprising to me that I would not declare a national emergency and just fund it through the

19 various mechanisms.”

20

37. Despite encouragement from Senate Republicans to agree to reopen the government

21 for a short period to negotiate with Democrats, President Trump promised to remain steadfast in his

22 demands for a wall along the United States-Mexico border. He would not declare a national

23 emergency “so fast,” he said, because, although “[i]t’s the easy way out, . . . Congress should do it.”

24

38. As the shutdown ground on, President Trump attempted to strike a compromise. He

25 announced on January 19, 2019, that he was willing to temporarily extend the Deferred Action for

26 Childhood Arrivals and Temporary Protected Status programs in exchange for $5.7 billion for a

27 border wall. Democratic leaders rejected the proposal as a “non-starter” that merely put forth

28

9 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 12 of 40

1 previously rejected offers. They urged the President to open the government before beginning

2 negotiations over border security.

3

39. On January 25, 2019, faced with worsening national gridlock as a result of the 35-day

4 shutdown, President Trump agreed to sign legislation that would keep the government open until

5 February 15, 2019. This stopgap legislation did not include any funding for a border wall and had

6 previously been rejected by the President.

7

40. In ending the government shutdown, the President stated that if he were unable to

8 “work with the Democrats and negotiate,” then “obviously we’ll do the emergency because that’s

9 what it is. It’s a national emergency.”

10

41. After the shutdown ended, a bipartisan committee of negotiators from the House and

11 Senate began work on a compromise appropriations bill that would include some funding for border

12 security. President Trump publicly expressed his skepticism that negotiations would be fruitful,

13 declaring that the negotiators were “wasting their time” and that he would “get [the wall] built one

14 way or the other.”

15

42. On January 31, 2019, President Trump stated that “we’ve set the stage for what’s

16 going to happen on February 15 if a deal is not made.” The next day, he said “I think there’s a good

17 chance that we’ll have to do” an emergency proclamation.

18

43. As House and Senate negotiators deliberated over a deal to avert another government

19 shutdown, Trump administration officials started laying the groundwork for a possible national

20 emergency declaration. Acting White House Chief of Staff Mick Mulvaney stated that “[w]e’ll take

21 as much money as [Congress] can give us and then we’ll go off and find the money someplace

22 else…but [the wall] is going to get built with or without Congress.”

23

44. On February 11, 2019, congressional negotiators finalized a funding deal. The

24 agreement included $1.375 billion for fencing and other physical barriers along 55 miles of the U.S.-

25 Mexico border and included numerous restrictions on the timing and location of construction.

26

45. President Trump stated that he was “not happy” with Congress’s compromise deal

27 and would find “other methods” to finance a wall without explicit approval form Congress.

28

10 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 13 of 40

Congress Considered and Specifically Rejected the President’s Wall Funding Demands in
1 Enacting the Consolidated Appropriations Act of 2019.

2

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

3 2019.

4

47. Congress’s enactment of the Consolidated Appropriations Act of 2019 occurred

5 against a backdrop of its consideration and rejection of the President’s $5.7 billion border wall

6 demand. On December 20, 2018, the House of Representatives had passed a continuing resolution

7 that met the President’s request for $5.7 billion in border wall funding. The Senate did not pass the

8 same legislation. When both houses of Congress came to an agreement and enacted the Consolidated

9 Appropriations Act of 2019, they elected to exclude the President’s requested $5.7 billion in wall

10 funds.

11

48. The House Appropriations Committee Chair, Representative Nita Lowey, confirmed

12 that congressional negotiators considered, and “frankly, . . . denie[d] the President billions of dollars

13 in funding for the concrete wall that he demanded.” Senator Patrick Leahy, Vice Chairman of the

14 Senate Appropriations Committee, who was actively involved in negotiations on the 2019

15 Consolidated Appropriations Act, stated “[t]he agreement does not fund President Trump’s wasteful

16 wall.” 165 Cong. Rec. S1362 (daily ed. Feb 14, 2019).

17

49. Congress’s appropriations judgment, as expressed in the law that passed both

18 chambers, is that only $1.375 billion should be used to construct a border wall, and that such a wall

19 must be limited geographically to the Rio Grande Valley Sector. The bill provided only a fraction of

20 the $5.7 billion that the President demanded for the border wall, allocating $1.375 billion for roughly

21 55 miles of pedestrian fencing in the Rio Grande Valley Sector of the southern border. The

22 appropriations act includes numerous carve-outs that prevent wall construction in parks and wildlife

23 areas, and requires the approval of local officials and a public comment period before initiating

24 construction in cities situated along the border.

25

50. Congress specifically prohibited the use of any appropriated funds in specific sections

26 of the Rio Grande Valley, forbidding the use of any funds to construct a barrier “(1) within the Santa

27 Ana Wildlife Refuge; (2) within the Bentsen-Rio Grande Valley State Park; (3) within La Lomita

28 Historical Park; (4) within the National Butterfly Center; or (5) within or east of the Vista del Mar

11 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 14 of 40

1 Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge.” Pub. Law No. 116-6,

2 Division A § 231.

3

51. In addition, Congress forbade the use of appropriated funds for construction within

4 the city limits of Roma, Texas; Rio Grande City, Texas; Escobares, Texas; La Grulla, Texas; and

5 within Salineño, Texas, until local elected officials and the public have had an opportunity to

6 comment on any plans for construction. Pub. Law No. 116-6, Division A § 232.

7

52. Finally, Congress imposed a prohibition on the use of any appropriated funds to

8 “increase . . . funding for a program, project, or activity as proposed in the President’s budget request

9 for a fiscal year until such proposed change is subsequently enacted in an appropriation Act . . . .”

10 Pub. Law No. 116-6, Division D § 739. The only exception to this prohibition is for changes “made

11 pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.”

12
President Trump Declares a National Emergency, Instructing his Secretaries of Defense and
13 Homeland Security to Construct his Wall in the Absence of Congressional Authorization.

14

53. President Trump stated that he would sign the appropriations bill and simultaneously

15 declare a national emergency. According to the President, $1.375 billion from Congress is “not so

16 much” for a border wall and the emergency declaration would allow him to supplement what

17 Congress has authorized “[s]o we have a chance of getting close to $8 billion [and] . . . build a lot of

18 wall.”

19

54. On February 15, 2019, President Trump declared a national emergency in order to

20 secure his preferred level of funding for his border wall. See “Presidential Proclamation on

21 Declaring a National Emergency Concerning the Southern Border of the United States” (“the

22 Proclamation”).

23

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

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

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

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

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

28

12 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 15 of 40

1

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

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

3 wall, [Congress] skimped.”

4

57. The President also expressed his disdain for Congress’s decision to include carve-out

5 areas where wall construction is prohibited, and emphasized the importance of a contiguous wall.

6 “The only weakness is they [individuals crossing the southern border] go to a wall and then they go

7 around the wall. They go around the wall and in . . . . They go through areas where you have no

8 wall.”

9

58. The President’s senior policy advisor, Stephen Miller, confirmed that emergency and

10 supplemental funding would allow for the construction of “hundreds of miles” of border wall by

11 September 2020—much faster than congressionally authorized funding would allow.

12

59. In describing the nature of the purported national emergency, the text of the

13 Proclamation (attached and incorporated herein as Exhibit A) refers to a “long-standing” problem of

14 “large-scale unlawful migration through the southern border” that has “worsened” in recent years

15 due to “sharp increases in the number of family units entering and seeking entry to the United States

16 and an inability to provide detention space” for them. It further states that these family units “are

17 often released into the country and are often difficult to remove from the United States because they

18 fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to

19 locate.”

20

60. The Proclamation states that “[b]ecause of the gravity of the current emergency

21 situation, it is necessary for the Armed Forces to provide additional support to address the crisis.”

22 The Proclamation further states “that this emergency requires use of the Armed Forces and, in

23 accordance with section 301 of the National Emergencies Act (50 U.S.C. § 1631), that the

24 construction authority provided in section 2808 of title 10, United States Code, is invoked and made

25 available, according to its terms, to the Secretary of Defense.”

26

61. The Proclamation directs the Secretary of Defense, pursuant to 10 U.S.C. § 2808, to

27 order members of the Ready Reserve to “assist and support the activities of the Secretary of

28 Homeland Security at the southern border” and orders the Secretaries of Defense and Homeland

13 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 16 of 40

1 Security, “if necessary,” to take action for “transfer and acceptance of jurisdiction over border

2 lands.”

3

62. According to a “fact sheet” issued by the White House, entitled “President Donald J.

4 Trump’s Border Security Victory,” the President has identified $3.6 billion to be reallocated from

5 Department of Defense military construction projects pursuant to 10 U.S.C. § 2808, $601 million to

6 be reallocated from the Treasure Forfeiture Fund, and $2.5 billion to be reallocated from Department

7 of Defense funds for counterdrug activities. The use of such funds was duly limited by Congress to

8 specific purposes pursuant to its authority under the Constitution.

9

63. The President intends to spend approximately $8.1 billion for construction of the

10 border wall, many times the $1.375 billion appropriated by Congress.

11

64. The President’s unlawful reallocation of military construction funds will jeopardize

12 construction projects at military bases and sites across the country, including in this District and

13 throughout California.

14

15

Congress Passes an Unprecedented Disapproval Resolution of the President’s Emergency Declaration.

16

65. The National Emergencies Act, 50 U.S.C. §§ 1601–1651, sets out a procedure

17 whereby Congress may terminate the national emergency if a resolution is passed by both houses of

18 Congress and becomes law. 50 U.S.C. § 1622.

19

66. Congress had never before passed such a resolution.

20

67. On February 26, 2019, the House of Representatives passed H.J. Res. 46, voting 245

21 to 182 to terminate the President’s declaration of emergency.

22

68. On March 14, 2019, the Senate likewise passed the disapproval resolution, voting 59

23 to 41 to terminate the President’s declaration of emergency.

24

69. Numerous senators explained that their vote was motivated by the President’s

25 usurpation of Congressional power. Senator Lamar Alexander of Texas stated that “[a]ny

26 appreciation for our structure of government means that no president should be able to use the

27 National Emergencies Act to spend money that Congress refuses to provide.” Senator Pat Toomey of

28 Pennsylvania stated, “I don’t think that the focus of the National Emergency Act is to circumvent

14 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 17 of 40

1 what the Congress and the president agreed to.” Senator Mitt Romney of Utah described the

2 disapproval vote as “a vote for the Constitution and for the balance of powers that is at its core.”

3

70. On March 15, 2019, President Trump vetoed the disapproval resolution.

4

5 The Government Initiates the Process of Diverting Funds to Build President Trump’s Wall.

6

71. On February 15, 2019, the Department of Treasury notified Congress that it would

7 transfer $242 million from the Treasury Forfeiture Fund to DHS to support law enforcement border

8 security efforts conducted by CBP. The notification stated that these funds would be available for

9 obligation as of March 2, 2019, with the remaining $359 million to be transferred and available for

10 obligation at a later date.

11

72. On February 26, 2019, the White House issued a Fact Sheet entitled “The Funds

12 Available to Address the National Emergency at Our Border.” The Fact Sheet states that “DOD will

13 augment existing counterdrug funds by transferring up to $2.5 billion from other DOD accounts” so

14 as to “direct needed funds to the border” through the FY 2019 Drug Interdiction and Counter-Drug

15 Activities account.

16

73. On March 6, 2019, Secretary Nielsen testified before the House of Representatives’

17 Homeland Security Committee that the proposed border wall would involve constructing a “little

18 more than 700” miles of barriers.

19

74. On March 8, 2019, President Trump wrote on Twitter: “The Wall is being built and is

20 well under construction. Big impact will be made. Many additional contracts are close to being

21 signed. Far ahead of schedule despite all of the Democrat Obstruction and Fake News!”

22

75. On March 9, 2019, President Trump wrote on Twitter that “Major sections of Wall

23 are being built” and that “MUCH MORE” would “follow shortly.”

24

76. On March 11, 2019, Senators on the Appropriations Committee, and the

25 Appropriations Subcommittees on Defense and on Military Construction and Veterans Affairs

26 released a letter stating that “Defense officials informed members of Congress that they are

27 preparing a transfer of funds into the Drug Interdiction and Counter-Narcotics Activities, Defense

28

15 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 18 of 40

1 account. This is necessary because the Department has obligated in excess of 90 percent of the

2 $881.5 million appropriated for that purpose in fiscal year 2019.”

3

77. On March 14, 2019, President Trump wrote on Twitter that “the Wall” is “already

4 under major construction.”

5
The President Issues a Fiscal Year 2020 Budget Request Seeking an Increase in Funding for
6 his Wall Project.

7

78. On March 11, 2019, the White House Office of Management and Budget released the

8 President’s Fiscal Year 2020 Budget Request.

9

79. The President states that “finishing the border wall is an urgent national priority,” and

10 that “[m]y Budget continues to reflect these priorities.” Accordingly, the fiscal year 2020 “Budget

11 requests $5 billion to construct approximately 200 miles of border wall along the U.S. Southwest

12 border.”

13

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

14 proposal, which requested “$9.2 billion of emergency funding for unspecified military construction.”

15 Of that figure, $3.6 billion would be allocated “to build border barriers,” and an additional $3.6

16 billion would be used to “backfill funding reallocated in FY 2019 to build border barriers.”

17

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

19

81. Through the expenditure of diverted funds in 2019, the administration expects to

20 complete construction of far more of the President’s wall than Congress authorized. This includes

21 areas for which the Department of Homeland Security plans have been announced, contracts have

22 been awarded, resources have been mobilized, or waivers have been issued.

23

82. According to the Department of Homeland Security, in 2019 it will commence

24 construction of 215 new miles of border wall. This construction will occur in ecologically sensitive

25 habitats and other border lands known for their outstanding hiking, wildlife viewing, photography,

26 and wilderness values. For example, the Department of Homeland Security has notified the public it

27 intends to commence wall construction in California’s San Diego and El Centro Sectors; Arizona’s

28 Yuma Sector; New Mexico’s El Paso Sector; and, Texas’s Laredo and Rio Grande Valley Sectors.

16 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 19 of 40

1

83. Examples of the environmental consequences can be seen in California’s San Diego

2 and El Centro Sectors, where border wall construction would be devastating. Any new wall

3 construction in these areas would be in or near the Otay Mountain Wilderness Area and the Jacumba

4 Wilderness Area. These areas are habitat to more than 100 sensitive plant and animal species that are

5 listed as “endangered,” “threatened,” or “rare” under the federal Endangered Species Act of 1973, 16

6 U.S.C. § 1531 et seq., and/or the California Endangered Species Act, Cal. Fish & Game Code § 2050

7 et seq. For example, the federally and state-endangered Peninsular Desert Bighorn sheep has a range

8 that includes mountainous terrain in Mexico near the United States-Mexico border and extends north

9 across the border through the Jacumba Wilderness to California’s Anza-Borrego State Park.

10

84. Likewise, construction is imminent in the Rio Grande Valley in Texas,

11 notwithstanding Congress’s decision to prevent the Trump administration from building a wall in

12 five areas nationally recognized for their ecological and recreational value. The administration’s

13 commitment to construct border walls in the Rio Grande Valley Sector means these areas are

14 threatened with irreversible damage despite express Congressional direction to preserve them. Initial

15 construction activities include accessing the project area with heavy equipment, creating and using

16 staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and

17 upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features,

18 lighting, cameras, and sensors. As a result of border wall construction, local communities would be

19 more vulnerable to flooding, divided by border wall infrastructure, and suffer irreparable damage to

20 cultural, historic, and recreational sites.

21

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

22 not appropriated by Congress to expand and expedite the border wall has injured the Sierra Club and

23 SBCC. Both organizations have been compelled to respond to the declared emergency to safeguard

24 their and their members’ interests, including by diverting resources from the organizations’

25 campaigns to unveil ongoing and imminent construction, educate their members, and respond to

26 threats to their organizational missions. Staff and affiliates have participated in grassroots advocacy,

27 engaged in rapid-response political outreach and advocacy with congressional and local elected

28 officials, and responded to requests from their members, the public, and elected officials about the

17 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 20 of 40

1 threat and implementation of unlawful expedited construction. The circumvention of legal processes,

2 lack of transparency, notice, and consultation, have frustrated the organizations’ efforts to work

3 towards their missions on behalf of their members.

4

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

5 environment and local communities that complies with NEPA.

6
LEGAL BACKGROUND
7
The Constitution Vests Congress with Exclusive Authority to Determine the Appropriation of
8 Public Funds.

9

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

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

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

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

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

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

15 appropriations laws. Except as specifically authorized by Congress, the Executive Branch has no

16 authority to expend public funds that have not been thus appropriated.

17

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

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

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

20 Money shall be published from time to time.”

21

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

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

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

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

25

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

26 agency, program, or government function. Congressional authorization of a program, however, does

27 not confer power on the Executive Branch to expend public funds. Only a specific appropriations

28 law can do that.

18 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 21 of 40

1

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

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

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

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

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

6

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

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

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

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

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

11 and expressly so provide.

12

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

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

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

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

16 amount of funding after careful consideration.

17

94. Temporary appropriations also reinforce and further Congress’ constitutional

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

19 Branch, as the Framers intended.

20
The Constitution Does Not Allow Appropriations to be Made by Executive Fiat, Rather than
21 By Law.

22

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

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

24 333 (1910). If the Executive Branch spends money in violation of an appropriation law, “it would be

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

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

27

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

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

19 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 22 of 40

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

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

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

4

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

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

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

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

8

9

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

10

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

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

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

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

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

15

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

16 by Congress. “There is no provision in the Constitution that authorizes the President to enact, to

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

18 back to the founding: “Our first President understood the text of the Presentment Clause as requiring

19 that he either approve all the parts of a Bill, or reject it in toto.” Id. at 440 (quotation marks omitted).

20

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

21 the Congress the opportunity to consider his objections and to pass the bill despite his disapproval.”

22 Wright v. United States, 302 U.S. 583, 596 (1938).

23

24

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

25

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

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

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

28

20 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 23 of 40

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

2 forces.” 10 U.S.C. § 2808.

3

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

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

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

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

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

8

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

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

10 abroad and for protection of weapons of mass destruction.

11

12

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

13

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

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

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

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

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

18

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

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

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

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

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

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

24 Defense for that support.”

25

26

27

28

21 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 24 of 40

1 Congress Has Expressly Restricted the Secretary of Defense’s Authority to Transfer or
Reprogram Funds Under Both Section 8005 of the Department of Defense Appropriations Act
2 and 10 U.S.C. § 2214.

3

106. 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

107. To transfer funds under Section 8005 of the 2019 Department of Defense

7 Appropriations Act, Pub. Law No. 115-245, the Secretary of Defense must make a determination

8 “that such action is necessary in the national interest” and obtain the approval of the Office of

9 Management and Budget. He must also promptly notify Congress of any such transfer. See also 10

10 U.S.C. § 2214(c).

11

108. According to its terms, authority to transfer funds pursuant to Section 8005 “may not

12 be used unless for higher priority items, based on unforeseen military requirements, than those for

13 which originally appropriated and in no case where the item for which funds are requested has been

14 denied by the Congress.”

15

109. Congress likewise limited the transfer of non-construction Department of Defense

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

17 unforeseen military requirements, than the items for which the funds were originally appropriated;”

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

19
Congress Did Not Permit the President to Use the Treasury Forfeiture Fund as an
20 Unrestricted Slush Fund.

21

110. Congress established the Department of the Treasury Forfeiture Fund to permit the

22 use of forfeited funds for specifically delineated law enforcement purposes. See 31 U.S.C. § 9705.

23

111. These purposes range from the payment of “compensation to informers,” “payment

24 for services of experts and consultants needed by a Department of Treasury law enforcement

25 organization to carry out the organization’s duties relating to seizure and forfeiture,” and similar

26 expenditures relating to the seizure and forfeiture program. 31 U.S.C § 9705(a).

27

112. Congress did not authorize use of the Treasury Forfeiture Fund to pay for

28 construction of a border wall.

22 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 25 of 40

1

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

2

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

3 1500.1(a) (1978). It was enacted with the ambitious objectives of “encourag[ing] productive and

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

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

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

7 Nation . . . .” 42 U.S.C. § 4321.

8

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

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

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

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

12

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

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

14 4342, 4344; 40 C.F.R. §§ 1500–1508 (1978).

15

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

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

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

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

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

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

21

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

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

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

24 concerning significant environmental impacts; it also guarantees that the relevant information will be

25 made available to the larger audience that may also play a role in both the decision-making process

26 and the implementation of that decision.” Methow Valley Citizens Council, 490 U.S. at 349.

27

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

28 the earliest possible time to insure that planning and decisions reflect environmental values, to avoid

23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 26 of 40

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

2 1502.5 (“An agency shall commence preparation of an [EIS] as close as possible to the time the

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

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

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

6

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

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

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

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

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

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

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

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

14

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

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

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

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

18

121. The Department of Homeland Security has not promulgated regulations to implement

19 NEPA, but has issued an Instruction Manual. Instruction Manual 023-01-001-01, Revision 01,

20 Implementation of NEPA (Nov. 6, 2014) (“DHS NEPA Manual”). The Manual specifically includes

21 “proposed construction, land use, activity, or operation that has the potential to significantly affect

22 environmentally sensitive areas” as an action “normally requiring” the preparation of at least an EA.

23

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

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

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

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

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

28 components that process applications for Department of Homeland Security funding or approval,

24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 27 of 40

1 “have a responsibility to integrate NEPA requirements early in the application process,” and to

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

3 proposal.

4

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

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

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

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

8 interested or affected”).

9

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

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

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

12

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

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

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

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

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

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

18

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

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

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

21 (9th Cir. 2003).

22

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

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

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

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

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

27 omitted).

28

25 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 28 of 40

1 Fiscal Law Forbids Mixing and Matching Sources of Funding to Evade Spending Limits.

2

128. Congressional appropriations occur against the backdrop of rules and interpretations

3 established by the General Accountability Office (“GAO”), which guide the executive branch’s use

4 of appropriated funds.

5

129. Among the authorities the GAO interprets are statutes governing the permissible use

6 of appropriated funds. These statutes include the Anti-Deficiency Act, the Purpose Statute, and the

7 Transfer Statute.

8

130. The Anti-Deficiency Act prohibits spending funds in excess of appropriations, unless

9 authorized by statute. See 31 U.S.C. § 1341(a)(1)(A) (officers and employees may not “make or

10 authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for

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

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

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

14

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

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

16 shall be applied only to the objects for which the appropriations were made except as otherwise

17 provided by law.”).

18

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

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

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

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

22 from one agency to another, (2) transfers from one account to another within the same agency, or (3)

23 transfers to an interagency or intra-agency working fund.” GAO, Principles of Federal

24 Appropriations Law: Fourth Edition, Chapter 2, GAO-16-464SP, pp. 2-38–2-39. In addition to

25 violating the Transfer Statute, “an unauthorized transfer would violate 31 U.S.C. § 1301(a) (which

26 prohibits the use of appropriations for other than their intended purpose), would constitute an

27 unauthorized augmentation of the receiving appropriation, and could, if the transfer led to

28

26 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 29 of 40

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

2 violation as well.” Id. at 2-38.

3

133. Courts frequently give “special weight to [GAO’s] opinions” due to its “accumulated

4 experience and expertise in the field of government appropriations.” Nevada v. Dep’t of Energy, 400

5 F.3d 9, 16 (D.C. Cir. 2005).

6

134. Many of the GAO’s rules protect a key function of congressional appropriations

7 judgment: setting a maximum authorized program level by specifically appropriating a finite set of

8 funds for a particular project. See SBA’s Imposition of Oversight Review Fees on PLP Lenders, B-

9 300248 (Comp. Gen. Jan. 15, 2004) (“In addition to providing necessary funds, a congressional

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

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

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

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

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

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

16

135. According to longstanding GAO authority, an agency may not combine multiple

17 appropriations to complete a project when neither appropriation is sufficient on its own for the

18 project. See Department of Homeland Security—Use of Management Directorate Appropriations to

19 Pay Costs of Component Agencies, B-307382 (Comp. Gen. Sept. 5, 2006). An agency cannot “elect

20 to use (or exhaust) first one and then the other of the two appropriations for the same class of

21 expenditures.” Id. (citing 10 Comp. Gen. 440, 447 (1931)).

22

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

23 two appropriations come from different accounts.” Nevada, 400 F.3d at 16 (citing 4 Comp. Gen. 476

24 (1924)). In other words, where Congress has allocated a specific amount of funding for an activity,

25 an agency cannot use funding from a more general fund to accomplish the specific goal.

26

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

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

28

27 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 30 of 40

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

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

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

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

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

6

7

DECLARATORY AND INJUNCTIVE RELIEF

8

138. Plaintiffs will suffer irreparable injury if Defendants take action to build a wall in

9 reliance on the Proclamation, or in implementing the President’s direction to use funds pursuant to

10 10 U.S.C. §§ 284, 2808 and 31 U.S.C § 9705, and Plaintiffs have no adequate remedy at law.

11

CLAIMS FOR RELIEF

12

FIRST CLAIM FOR RELIEF

13

(The Consolidated Appropriations Act of 2019, Pub. Law No. 116-6)

14

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

15 scope of their constitutional and/or statutory authority.

16

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

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

18 2019. Congress’s appropriations judgment is that only $1.375 billion should be used to construct a

19 border wall, that such a wall must be limited geographically to 55 miles within the Rio Grande

20 Valley Sector, and that construction of a border wall should not proceed at this time with respect to

21 numerous areas specifically described in the law.

22

141. Congress enacted the Consolidated Appropriations Act of 2019 against the backdrop

23 of the President’s continued demand for $5.7 billion in unrestricted border wall funding for

24 construction of a contiguous barrier between the United States and Mexico. “Congress has expressed

25 its will to withhold this power from the President as though it had said so in so many words.”

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

27

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

28 Defense to act beyond the limitations imposed by Congress by spending approximately $8.1 billion

28 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 31 of 40

1 to build a wall across the border, in purported reliance on a patchwork of older, more general statutes

2 that are silent on wall construction.

3

143. The statutes the President purports to rely on, 10 U.S.C. §§ 284, 2808 and 31 U.S.C

4 § 9705, do not authorize wall construction outside of the limited geographic, monetary, and

5 scheduling bounds set by Congress in the Consolidated Appropriations Act of 2019.

6

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

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

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

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

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

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

12 (quotations and citations omitted; brackets in original).

13

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

14 to construct the border wall violates the Consolidated Appropriations Act of 2019. It funds the wall

15 in excess of the amount established by Congress and it denies funds from other projects that

16 Congress chose to fund.

17

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

18 10 U.S.C. § 2808 because it does not identify an emergency requiring use of the armed forces.

19

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

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

21 project supporting the armed forces.

22

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

23 Consolidated Appropriations Act of 2019.

24

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

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

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

27

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

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

29 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 32 of 40

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

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

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

4

151. In addition, use of funds under 10 U.S.C. § 284 to construct the border wall is

5 contrary to Congress’s judgment in the Consolidated Appropriations Act of 2019 because funds not

6 appropriated for wall construction cannot be reimbursed to the Department of Defense under 10

7 U.S.C. § 277.

8

152. Use of the Treasury Forfeiture Fund under 31 U.S.C. § 9705 to construct the border

9 wall violates the Consolidated Appropriations Act of 2019. Congress did not authorize use of the

10 Treasury Forfeiture Fund to pay for construction of a border wall, and any general authorization for

11 use of funds in that statute must be interpreted against Congress’s more specific passage of the

12 Consolidated Appropriations Act of 2019.

13

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

14 Consolidated Appropriations Act of 2019 for construction of a border barrier violates Division D,

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

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

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

18

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

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

20 appropriation act.

21

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

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

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

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

25

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

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

27

28

30 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 33 of 40

1

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

2

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

3

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

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

5

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

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

7 2019.

8

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

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

10 to build a wall across the border.

11

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

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

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

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

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

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

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

18 609 (Frankfurter, J., concurring).

19

162. Because the statutes the President purports to rely on, 10 U.S.C. §§ 284, 2808, and 31

20 U.S.C § 9705, do not authorize wall construction outside of the limited geographic, monetary, and

21 scheduling bounds set by Congress in the Consolidated Appropriations Act of 2019, the use of those

22 statutes to fund border wall construction usurps Congress’s legislative authority and violates the

23 Constitution’s separation of powers.

24

25

THIRD CLAIM FOR RELIEF

(Appropriations Clause, Article I, Section 9, Clause 7 of the Constitution)

26

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

27

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

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

31

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 34 of 40

1

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

2 $1.375 billion for border wall construction.

3

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

4 2808 and 31 U.S.C § 9705 to order that billions more be spent on the wall than provided in those

5 legislative appropriations. The President has ordered the Secretaries of Defense and Homeland

6 Security to implement his determination that additional billions be spent on construction of the

7 border wall.

8

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

9 by statutes that provide authority for emergency proclamations.

10

168. Congress cannot give the President authority to contravene restrictions on the use of

11 Treasury funds for construction of a border wall, contained within an appropriations law that

12 Congress has passed and the President has signed.

13

169. To the extent that 10 U.S.C. §§ 284 and 2808 and 31 U.S.C § 9705 authorize the

14 President to allocate money from the Department of the Treasury by executive proclamation, rather

15 than by law, and in contravention of restrictions contained in Congress’s appropriations’ laws, they

16 violate the Constitution.

17

18

FOURTH CLAIM FOR RELIEF (Presentment Clause, Article I, Section 7, Clause 2)

19

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

20

171. 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

172. 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

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

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

28

32 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 35 of 40

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

2 Presentment Clause.

3

174. To the extent that 10 U.S.C. §§ 284 and 2808 and 31 U.S.C § 9705 authorize the

4 President to modify or repeal Congress’s appropriations legislation by executive proclamation, rather

5 than by law, they violate the Constitution.

6

FIFTH CLAIM FOR RELIEF

7

(National Environmental Policy Act, 42 U.S.C. § 4332)

8

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

9

176. The Secretaries of Defense, Homeland Security, and the Treasury must ensure that

10 their agencies prepare an environmental impact statement on major Federal actions “significantly

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

12 determine whether any such significant effects exist. Robertson v. Methow Valley Citizen Council,

13 490 U.S. 332, 348 (1989); Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000); 42 U.S.C. §

14 4332(2)(C). A federal agency “bears the primary responsibility to ensure that it complies with 15 NEPA.” ’Ilio’Ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006). “When an agency

16 decides to proceed with an action in the absence of an EA or EIS, the agency must adequately

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

18

177. 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

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

24 obligations under NEPA.

25

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

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

27 funds. Section 8113 of the 2019 Department of Defense Appropriations Act prohibits the payment of

28 salary to any officer or employee of the Department of Defense who “approves or implements the
33 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 36 of 40

1 transfer of administrative responsibilities or budgetary resources . . . to the jurisdiction of another

2 Federal agency not financed by this Act without the express authorization of Congress.” The

3 Department of Defense is obligated to comply with NEPA, and no Defense officer or employee may

4 transfer to DHS the Department of Defense’s own responsibility to comply with NEPA.

5

180. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

6 Mnuchin violate NEPA and NEPA’s implementing regulations by authorizing border wall

7 construction without first conducting the necessary environmental analysis of the impacts of the

8 actions in an EA or EIS, or a programmatic EIS, in light of the potentially significant impacts that

9 the action will have, including both cumulative effects and the effects of connected actions.

10

181. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

11 Mnuchin further violate NEPA and NEPA’s implementing regulations by failing to initiate and

12 complete NEPA at the earliest possible time in the planning process.

13

182. As directed by Defendant Trump’s Proclamation, Defendants Shanahan, Nielsen, and

14 Mnuchin have utterly failed and/or refused to involve the public in its decision-making processes for

15 border construction. This failure to provide for any public participation in relation to their approval

16 of border wall construction violates NEPA and its implementing regulations.

17

SIXTH CLAIM FOR RELIEF

18

(Ultra Vires)

19

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

20

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

21 50 U.S.C. § 1631 and 10 U.S.C. § 2808 for failure to meet the criteria required under those statutes.

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

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

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

25

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

26 10 U.S.C. § 284 for failure to meet the criteria required under that statute. Construction of the border

27 wall does not constitute the construction of a road or fence to block “drug smuggling corridors.” In

28 addition, use of funds under 10 U.S.C. § 284 to construct the border wall in the face of Congress’s

34 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 37 of 40

1 judgment that additional money should not be spent on the wall would violate the Consolidated

2 Appropriations Act of 2019 because such money, having not been appropriated for wall

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

4

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

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

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

7 § 1301(a), and the Transfer Statute, 31 U.S.C. § 1532, as correctly interpreted by the GAO. An

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

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

10 sheet issued on February 15, Defendants intend to use different appropriations “sequentially and as

11 needed.” In addition, “specific appropriations preclude the use of general ones even when the two

12 appropriations come from different accounts.” Nevada, 400 F.3d at 16 (citing 4 Comp. Gen. 476

13 (1924)). But Defendants have indicated that they will disregard the specific limitation Congress

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

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

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

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

18 the fiscal year 2019 budget justification for this appropriation includes no mention of any plans to

19 use the appropriation for walls or fences.

20

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

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

22 wall. Section 8005 of the 2019 Department of Defense Appropriations Act, Pub. Law No. 115-245,

23 prohibits the transfer of Department of Defense funds “where the item for which funds are requested

24 has been denied by the Congress,” and 10 U.S.C § 2214(b) similarly bars transfers in support of any

25 “item for which Congress has denied funds.” Congress has denied funding for Defendants’ planned

26 wall construction, thus barring the Department of Defense from using transfers to fund it.

27

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

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

35 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 38 of 40

1 border wall because Section 8005 of the 2019 Department of Defense Appropriations Act and 10

2 U.S.C § 2214(b) prohibit the transfer of Department of Defense funds except where the transfer is to

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

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

5 claims that Defendant Trump has made for years, including prior to enactment of the 2019

6 Department of Defense Appropriations Act. Moreover, the building of a permanent border wall is

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

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

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

10 responsibilities for securing U.S. land borders.

11

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

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

13 wall because Section 8005 of the 2019 Department of Defense Appropriations Act and 10 U.S.C §

14 2214(b) do not authorize the transfer of Department of Defense funds for the purpose of supporting

15 another agency’s work. While 10 U.S.C. § 284 funds may, in appropriate circumstances, be used by

16 the Department of Defense to support another agency’s counterdrug efforts, Congress has not

17 authorized the Department of Defense to transfer additional Defense funds into the Drug Interdiction

18 and Counter-Narcotics Activities account for the purpose of supporting another agency, rather than

19 for military requirements.

20

190. Finally, Defendants are acting ultra vires in seeking to divert funding pursuant to 31

21 U.S.C. § 9705 because they fail to meet the criteria required under that statute. Congress did not

22 authorize use of the Treasury Forfeiture Fund to pay for construction of a border wall, and the

23 general authorization for use of funds in that statute is controlled by Congress’s more specific

24 passage of the Consolidated Appropriations Act of 2019.

25

26

27

28

36 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 39 of 40

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs pray that this Court:

3

(A) Declare the President’s direction that Defendants Shanahan, Nielsen, and Mnuchin

4

reallocate funds to support construction of a border wall under 10 U.S.C. §§ 2808 and

5

284, Section 8005 of the 2019 Department of Defense Appropriations Act, P.L. No.

6

115-245, and 31 U.S.C. § 9705 to be ultra vires, in excess of presidential authority

7

under Article II of the Constitution, an infringement on legislative authority, a

8

violation of the Presentment Clause, and invalid;

9

(B) Enjoin Defendants Shanahan, Nielsen, and Mnuchin from taking action to build a

10

border wall using funds or resources from the Defense Department or Treasury Asset

11

Forfeiture Fund, or on any basis that depends on the President’s unlawful emergency

12

declaration;

13

(C) Declare that Defendants Shanahan, Nielsen, and Nielsen have violated NEPA and its

14

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

15

to conduct any NEPA analysis, failing to provide any opportunity for public

16

participation, and failing to take a “hard look” at the potential environmental impacts

17

of the border wall project;

18

(D) Enjoin Defendants Shanahan, Nielsen, and Mnuchin from implementing the border

19

wall project until and unless Defendants comply with NEPA, the Endangered Species

20

Act, and the implementing regulations for those laws;

21

(E) Award Plaintiffs their reasonable costs of litigation, including reasonable attorneys’

22

fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 and/or

23

other authority; and

24

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

25

26

27

28

37 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26 Filed 03/18/19 Page 40 of 40

1 Dated: March 18, 2019 2

3
Mollie M. Lee (SBN 251404)

4 Christine P. Sun (SBN 218701)

American Civil Liberties Union Foundation

5

of Northern California, Inc.

6

39 Drumm Street San Francisco, CA 94111

7 Tel.: (415) 621-2493

Fax: (415) 255-8437

8 mlee@aclunc.org

9 csun@aclunc.org

10

David Donatti* Andre I. Segura (SBN 247681)

11 American Civil Liberties Union Foundation

of Texas

12 P.O. Box 8306

13

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

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

15 asegura@aclutx.org

Respectfully submitted,
/s/ Dror Ladin
Dror Ladin* Noor Zafar* Hina Shamsi* Omar C. Jadwat* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2660 Fax: (212) 549-2564 dladin@aclu.org nzafar@aclu.org hshamsi@aclu.org ojadwat@aclu.org
Cecillia D. Wang (SBN 187782) American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Fax: (415) 395-0950 cwang@aclu.org

16

Sanjay Narayan (SBN 183227)**

17

Gloria D. Smith (SBN 200824)** Sierra Club Environmental Law Program

18

2101 Webster Street, Suite 1300

Oakland, CA 94612

19

Tel.: (415) 977-5772

sanjay.narayan@sierraclub.org

20

gloria.smith@sierraclub.org

21

22

Counsel for Plaintiffs

23

*Admitted pro hac vice

24

**Counsel for Plaintiff Sierra Club

25

26

27

28

38 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO: 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26-1 Filed 03/18/19 Page 1 of 3
Exhibit A

2/19/2019

PreCsidaensteial 4Pr:o1c9la-mcavtio-n0o0n8D9e2cl-aHrinSg aGNatiDonoalcEummergeenncty2C6on-1cerniFngiltehedS0ou3th/1er8n /B1o9rder PofathgeeUn2iteod fSt3ates | The White House

PROCLAMATIONS
Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the
United States
NATIONAL SECURITY & DEFENSE
Issued on: February 15, 2019
★★★
The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are o en released into the country and are o en di icult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise di icult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare that a national emergency exists at the southern border

https://www.whitehouse.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/

1/2

2/19/2019

PreCsidaensteial 4Pr:o1c9la-mcavtio-n0o0n8D9e2cl-aHrinSg aGNatiDonoalcEummergeenncty2C6on-1cerniFngiltehedS0ou3th/1er8n /B1o9rder PofathgeeUn3iteod fSt3ates | The White House

of the United States, and that section 12302 of title 10, United States Code, is invoked and made

available, according to its terms, to the Secretaries of the military departments concerned, subject

to the direction of the Secretary of Defense in the case of the Secretaries of the Army, Navy, and Air

Force. To provide additional authority to the Department of Defense to support the Federal

Government’s response to the emergency at the southern border, I hereby declare that this

emergency requires use of the Armed Forces and, in accordance with section 301 of the National

Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title

10, United States Code, is invoked and made available, according to its terms, to the Secretary of

Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military

departments. I hereby direct as follows:

Section 1. The Secretary of Defense, or the Secretary of each relevant military department, as appropriate and consistent with applicable law, shall order as many units or members of the Ready Reserve to active duty as the Secretary concerned, in the Secretary’s discretion, determines to be appropriate to assist and support the activities of the Secretary of Homeland Security at the southern border.

Sec. 2. The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and acceptance of jurisdiction over border lands.

Sec. 3. This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its o icers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this fi eenth day of February, in the year of our Lord two thousand nineteen, and of the Independence of the United States of America the two hundred and forty-third.

DONALD J. TRUMP

https://www.whitehouse.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/

2/2

Case 4:19-cv-00892-HSG Document 26-2 Filed 03/18/19 Page 1 of 4

1 DROR LADIN*

NOOR ZAFAR*

2 HINA SHAMSI*

OMAR C. JADWAT*

3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

125 Broad Street, 18th Floor

4 New York, NY 10004

Tel.: (212) 549-2660

5 Fax: (212) 549-2564

dladin@aclu.org

6 nzafar@aclu.org

hshamsi@aclu.org

7 ojadwat@aclu.org

*Admitted pro hac vice

8

CECILLIA D. WANG (SBN 187782)

9 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

39 Drumm Street

10 San Francisco, CA 94111

Tel.: (415) 343-0770

11 Fax: (415) 395-0950

cwang@aclu.org

12

SANJAY NARAYAN (SBN 183227)**

13 GLORIA D. SMITH (SBN 200824)**

SIERRA CLUB ENVIRONMENTAL LAW PROGRAM

14 2101 Webster Street, Suite 1300

Oakland, CA 94612

15 Tel.: (415) 977-5772

sanjay.narayan@sierraclub.org

16 gloria.smith@sierraclub.org

**Counsel for Plaintiff SIERRA CLUB

17

Attorneys for Plaintiffs (Additional counsel listed on following page)

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO-OAKLAND DIVISION

20

SIERRA CLUB and SOUTHERN BORDER

21 COMMUNITIES COALITION,

22

Plaintiffs,

Case No.: 4:19-cv-00892-HSG

23

v.

24 DONALD J. TRUMP, President of the United
States, in his official capacity; PATRICK M.
25 SHANAHAN, Acting Secretary of Defense, in his
official capacity; KIRSTJEN M. NIELSEN,
26 Secretary of Homeland Security, in her official
capacity; and STEVEN MNUCHIN, Secretary of
27 the Treasury, in his official capacity,

CERTIFICATE OF SERVICE OF AMENDED COMPLAINT

28

Defendants.

1 CERTIFICATE OF SERVICE OF AMENDED COMPLAINT
CASE NO. 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26-2 Filed 03/18/19 Page 2 of 4
1 Additional counsel for Plaintiffs:
2 MOLLIE M. LEE (SBN 251404)
CHRISTINE P. SUN (SBN 218701)
3 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street
San Francisco, CA 94111
5 Tel.: (415) 621-2493
Fax: (415) 255-8437
6 mlee@aclunc.org
csun@aclunc.org
7
DAVID DONATTI*
8 ANDRE I. SEGURA (SBN 247681)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
9 OF TEXAS
P.O. Box 8306
10 Houston, TX 77288
Tel.: (713) 325-7011
11 Fax: (713) 942-8966
ddonatti@aclutx.org
12 asegura@aclutx.org 13 *Admitted pro hac vice
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2 CERTIFICATE OF SERVICE OF AMENDED COMPLAINT
CASE NO. 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26-2 Filed 03/18/19 Page 3 of 4

1

I am employed in the City of New York, State of New York, in the office of a member of the

2 bar of this Court at whose direction the following service was made. I am over the age of eighteen

3 years and not a party to the within action. My business address is American Civil Liberties Union
4
Foundation, 125 Broad Street, 18th Floor, New York, NY 10004.
5
On March 18, 2019, I served copies of the following documents:
6

7

PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

8

STANDING ORDER FOR CIVIL CASES BEFORE DISTRICT JUDGE

9

HAYWOOD S. GILLIAM, JR.

10

11

 via CM/ECF to all parties who have entered appearances in this case as of today, March 18, 2019, at 6 p.m.

12

13

 via FIRST CLASS MAIL by placing a copy of this filing in a sealed envelope addressed as

14

shown below, and causing it to be sent to the following:

15 Donald J. Trump

16

President of the United States of America The White House

17

1600 Pennsylvania Avenue NW Washington, D.C. 20500

18 Patrick M. Shanahan

19

Acting Secretary of Defense 1000 Defense Pentagon

20 Washington, D.C. 20301-1000

21

Steven Mnuchin Secretary of the Treasury

22

U.S. Department of the Treasury 1500 Pennsylvania Avenue NW

23 Washington, D.C. 20220

24

Kristjen M. Nielsen Secretary of Homeland Security

25

U.S. Department of Homeland Security Washington, D.C. 20528

26

VIA U.S. POSTAL SERVICE VIA U.S. POSTAL SERVICE VIA U.S. POSTAL SERVICE VIA U.S. POSTAL SERVICE

27

28

3 CERTIFICATE OF SERVICE OF AMENDED COMPLAINT
CASE NO. 4:19-cv-00892-HSG

Case 4:19-cv-00892-HSG Document 26-2 Filed 03/18/19 Page 4 of 4

1

I declare under penalty of perjury under the laws of the United States that the foregoing is

2 true and correct and that this certificate was executed on March 18, 2019, at New York, New York.

3

/s/ Molly Buckley

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 CERTIFICATE OF SERVICE OF AMENDED COMPLAINT
CASE NO. 4:19-cv-00892-HSG

 
 Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 1 of 23

1 Douglas N. Letter, General Counsel (D.C. Bar No. 253492) Todd B. Tatelman, Deputy General Counsel (VA Bar No. 66008)
2 Megan Barbero, Associate General Counsel (MA Bar No. 668854) 3 Kristin A. Shapiro, Assistant General Counsel (D.C. Bar No. 1007010)
Brooks M. Hanner, Assistant General Counsel (D.C. Bar No. 1005346) 4 Sarah E. Clouse, Attorney (MA Bar No. 688187)

5 OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES
6 219 Cannon House Office Building Washington, D.C. 20515
7 (202) 225-9700 (telephone) (202) 226-1360 (facsimile)
8 douglas.letter@mail.house.gov

9 Counsel for Amicus Curiae the United States House of Representatives

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12 SIERRA CLUB and SOUTHERN BORDER
13 COMMUNITIES COALITION,
14 Plaintiffs,
15 v.
16 DONALD J. TRUMP, President of the United
17 States, in his official capacity, et al.,
18 Defendants.
19

Case No. 4:19-cv-00892-HSG
P.I. Hearing Date: May 17, 2019 Time: 10:00 AM
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

20

21

22

23

24

25

26

27

28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 2 of 23

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................................... 1

3 ARGUMENT ................................................................................................................................... 3

4 THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION PROHIBITING
5 DEFENDANTS FROM SPENDING FUNDS ON A BORDER WALL WITHOUT A VALID APPROPRIATION .......................................................................................................................... 3
6
A. Congress Did Not Appropriate $8.1 Billion for a Border Wall ........................................... 4 7

8

B. Defendants’ Asserted Authority Does Not Excuse Their Expenditure of Funds on a Border Wall in the Absence of a Valid Appropriation ........................................................ 8

9

1. Defendants’ Transfer and Expenditure of $2.5 Billion under Section 284 on a

10

Border Wall Violates the Appropriations Clause .......................................................... 8

11

2. Defendants’ Expenditure of $3.6 Billion under Section 2808 on a Border Wall

Violates the Appropriations Clause ............................................................................. 11 12

CONCLUSION .............................................................................................................................. 17 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 i
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 3 of 23

1 2 Cases

TABLE OF AUTHORITIES

3 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) .................................................................................................. 14, 15

4

City & Cty. of San Francisco v. Trump,

5

897 F.3d 1225 (9th Cir. 2018) ....................................................................................... 3, 4

6 Delta Data Sys. Corp. v. Webster,

7

744 F.2d 179 (D.C. Cir. 1984)........................................................................................... 4

8 Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013)..................................................................................... 3, 17
9

10

Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ....................................................................................... 3, 17

11

I.N.S. v. Phinpathya,

12

464 U.S. 183 (1984) ........................................................................................................ 16

13 Schneider v. Smith,

14

390 U.S. 17 (1968) .......................................................................................................... 16

15 U.S. House of Representatives v. Mnuchin, 1:19-cv-00969 (D.D.C.)..................................................................................................... 3
16

United States v. Dreyer,

17

804 F.3d 1266 (9th Cir. 2015) ......................................................................................... 12

18 U.S. Dep’t of the Navy v. FLRA,

19

665 F.3d 1339 (D.C. Cir. 2012)................................................................................. 1, 3, 4

20 Constitution

21 U.S. Const. art. I, § 9, cl. 7 .............................................................................................................. 1
22 Statutes
23 8 U.S.C. § 1521 ............................................................................................................................. 13
24 25 8 U.S.C. § 1522 ............................................................................................................................. 13
26 10 U.S.C. § 284 ......................................................................................... 1, 2, 3, 4, 8, 9, 11, 15, 17

27 10 U.S.C. § 2801 ..................................................................................................................... 11, 14

28 ii
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 4 of 23

1 10 U.S.C. § 2808 ............................................................................. 2, 3, 4, 8, 11, 12, 14, 15, 16, 17

2 31 U.S.C. § 1532 ............................................................................................................................. 9

3 31 U.S.C. § 9705 ........................................................................................................................... 12

4

Consolidated Appropriations Act, 2019, Pub L. No. 116-6 (2019)

5

(to be printed at 133 Stat. 13)........................................................................................ 7, 13

6 Department of Defense and Labor, Health and Human Services, and Education

7

Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No.

115-245 (2018) (to be printed at 132 Stat. 2981)............................................................ 8, 9

8

Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5 (2019)

9

(to be printed at 133 Stat. 10).............................................................................................. 6

10 National Emergencies Act, 50 U.S.C. § 1601 et seq..................................................................... 12
11 Posse Comitatus Act, 18 U.S.C. § 1385........................................................................................ 12
12 Pub. L. No. 93-238, 87 Stat. 1026 (1974) ..................................................................................... 10
13
14 Other Authorities

15 The Federalist No. 51 (James Madison) ......................................................................................... 1

16 Further Additional Continuing Appropriations Act, 2019, H.R. 695, 115th Cong. (2018) ............ 5

17 H. Rep. No. 93-662 (1973)...................................................................................................... 10, 11
18 H. Rep. No. 94-238 (1975)............................................................................................................ 16
19 H. Rep. 99-106 (1985) ............................................................................................................ 10, 11
20 S. Rep. 94-1168 (1976) ................................................................................................................. 16
21

22

23

24

25

26

27

28 iii
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 5 of 23

1

INTRODUCTION

2

The United States House of Representatives submits this amicus brief in support of

3 plaintiffs’ motion for a preliminary injunction. The House has a compelling institutional interest

4 in the Court’s grant of expedited relief prohibiting defendants from spending federal funds without

5 a valid appropriation. This case arises out defendants’ flagrant disregard for the bedrock

6 constitutional principle that “[n]o Money shall be drawn from the Treasury, but in Consequence of

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

8 Congress with “exclusive power over the federal purse,” and it is “one of the most important

9 authorities allocated to Congress in the Constitution’s ‘necessary partition of power among the

10 several departments.’” U.S. Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1346 (D.C. Cir. 2012)

11 (quoting The Federalist No. 51 (James Madison)). Notwithstanding this clear constitutional

12 command, on the same day that President Trump signed legislation providing only $1.375 billion

13 for the construction of barriers along the southern border, he announced that his Administration 14 would in fact spend up to $8.1 billion.1 To support this expenditure, President Trump declared a

15 national emergency, despite acknowledging that whether the amount spent is “$8 billion or $2

16 billion or $1.5 billion, it’s going to build a lot of wall” and stating that “I didn’t need to do this.”2

17 This decision to build a border wall in the absence of a valid appropriation usurps Congress’s

18 authority under the Appropriations Clause.

19

Attempting to paper over its unconstitutional expenditure of funds, the Administration

20 incorrectly asserts the authority to spend billions of dollars on a border wall under three separate

21 statutory provisions: (1) “[a]bout $601 million from the Treasury Forfeiture Fund”; (2) “[u]p to

22 $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug

23 Activities,” 10 U.S.C. § 284; and (3) “[u]p to $3.6 billion reallocated from Department of Defense

24

25

1 See Fact Sheet: President Donald J. Trump’s Border Security Victory, White House (Feb.

15, 2019) (Border Victory Fact Sheet), http://tinyurl.com/WHBorderVictory.

26

2 Remarks by President Trump on the National Security and Humanitarian Crisis on Our

Southern Border, White House (Feb. 15, 2019, 10:39 AM) (Feb. 15 Rose Garden Remarks), 27 http://tinyurl.com/TrumpRoseGardenRemarks; see Proclamation No. 9844, 84 Fed. Reg. 4949

28 (Feb. 20, 2019) (National Emergency Proclamation).

1
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 6 of 23

1 military construction projects under the President’s declaration of a national emergency,” 10 U.S.C.

2 § 2808.3 As discussed below, two of the provisions on which the Administration purports to rely

3 to spend up to $6.1 billion provide no authority for such expenditures – and, absent a valid

4 Congressional appropriation, those expenditures violate the Appropriations Clause.

5

First, defendants’ expenditure of up to $2.5 billion on the construction of a border wall

6 under 10 U.S.C. § 284 violates the Appropriations Clause. Section 284 authorizes the Secretary of

7 Defense to construct fences to block drug smuggling corridors along the border. The House

8 understands that most of the fiscal year 2019 funding Congress appropriated for such purposes has

9 already been used. Thus, defendants plan to spend nearly $2.5 billion that Congress appropriated

10 for other purposes on the construction of a border wall under the section – and defendants have

11 already transferred $1 billion for such construction and awarded contracts against this funding.

12 Defendants claim that section 8005 of the 2019 Department of Defense Appropriations Act

13 authorizes the transfer of these funds. However, that section only authorizes transfers for “higher

14 priority items, based on unforeseen military requirements” and “in no case where the item for which

15 funds requested has been denied by Congress.” In this case, the transfers are not based on

16 “unforeseen military requirements,” and President Trump’s request for up to $5 billion for a border

17 wall was “denied by Congress.” Notably, section 8005 also excludes transfers for purposes of

18 “military construction.”

19

Second, defendants’ expenditure of up to $3.6 billion on the construction of a border wall

20 under 10 U.S.C. § 2808 violates the Appropriations Clause. Section 2808(a) provides that, when

21 the President declares a national emergency, the Secretary of Defense may redirect unobligated

22 military construction funds to other projects subject to three specific limitations: (1) there must be

23 a national emergency “that requires the use of the armed forces,” (2) the funding must be spent on

24 a “military construction project,” and (3) the project must be “necessary to support [the] use of the

25 armed forces.” Here, the Administration’s border wall fails all three conditions: there is no

26 emergency that requires the use of the armed forces, and, even if there were, a border wall is not

27 necessary to support the use of the armed forces. In addition, a border wall is not a “military

28

3 See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.

2

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 7 of 23

1 construction project.” As noted above, the justification for defendants’ transfer of funds under

2 section 8005 depends on the argument that the border wall does not constitute military construction.

3

Underscoring the Administration’s disregard for the Constitution, Mick Mulvaney, Acting

4 White House Chief of Staff and Director of the Office of Management and Budget, recently stated

5 that the wall “is going to get built with or without Congress.”4 The Appropriations Clause dictates,

6 however, that defendants may only spend money to build a wall with Congress. Even the monarchs 7 of England long ago lost the power to raise and spend money without the approval of Parliament.5

8

Plaintiffs are therefore very likely to succeed on the merits of their claims that defendants

9 are unconstitutionally transferring and spending funds under sections 284 and 2808(a) on the

10 construction of a border wall. Because “the Constitution is the ultimate expression of the public

11 interest,” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (quotation marks omitted), and

12 “all citizens have a stake in upholding the Constitution,” Hernandez v. Sessions, 872 F.3d 976, 996

13 (9th Cir. 2017) (quotation marks omitted), this Court should issue a preliminary injunction

14 prohibiting defendants from spending funds on the construction of a border wall in the absence of

15 a valid Congressional appropriation.6

16

ARGUMENT

17 THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION PROHIBITING DEFENDANTS FROM SPENDING FUNDS ON A BORDER WALL WITHOUT A VALID
18 APPROPRIATION

19

“Decisions of the Supreme Court and this Court have strictly enforced the constitutional

20 requirement . . . that uses of appropriated funds be authorized by Congress.” FLRA, 665 F.3d at

21 1342; see also City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018). Indeed,

22

23

4 Andrew O’Reilly, Mulvaney Says Border Wall Will Get Built, ‘With or Without’ Funding

from Congress, Fox News (Feb. 10, 2019), https://tinyurl.com/MulvaneyFoxNewsSunday.

24

5 See The Civil War: The Long Parliament, U.K. Parliament,

https://tinyurl.com/UKLongParliament (last visited Apr. 10, 2019) (discussing Parliament’s 25 condemnation of King Charles I’s “personal rule” from 1629-1640 and Parliament’s declaration in

26

the 1640s that nonparliamentary taxation would be illegal). 6 On April 5, 2019, the House filed suit in the U.S. District Court for the District of

27 Columbia, seeking redress for its injury caused by defendants’ unconstitutional actions. See U.S.

House of Representatives v. Mnuchin, 1:19-cv-00969 (D.D.C.). The House submits this amicus

28 brief in further defense of its constitutional authority.

3
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 8 of 23

1 the Executive Branch cannot buy so much as a single plank of wood without a valid appropriation.

2 See FLRA, 665 F.3d at 1346-47. In considering whether defendants’ proposed expenditures comply

3 with Congress’s specific statutory limitations, “it is the court that has the last word and it should

4 not shrink from exercising its power.” Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 202 (D.C.

5 Cir. 1984) (quotation marks and punctuation omitted); accord FLRA, 665 F.3d at 1349. As

6 explained below, defendants’ expenditure of funds under sections 284 and 2808 on the construction

7 of a border wall has not been authorized by Congress. In the absence of a valid Congressional

8 appropriation, these transfers and expenditures violate the Appropriations Clause. The Court

9 should enjoin defendants’ unconstitutional activities. Plaintiffs’ request for preliminary injunctive

10 relief is particularly urgent given that defendants have begun awarding contracts to construct a

11 border wall without a valid appropriation.

12

A. Congress Did Not Appropriate $8.1 Billion for a Border Wall

13

Congress decidedly rejected President Trump’s request for $5 billion to build a border wall.

14 Indeed, Congress’s rejection of President Trump’s request precipitated the longest Federal

15 Government shutdown in history. In the absence of a valid appropriation, the Administration’s

16 expenditure of funds on the construction of a border wall plainly violates the Appropriations

17 Clause. See City & Cty. of San Francisco, 897 F.3d at 1231; FLRA, 665 F.3d at 1342.

18

Specifically, for fiscal year 2019, President Trump officially requested from Congress “$1.6

19 billion to construct approximately 65 miles of border wall.” 7 Around July 2018, however,

20 President Trump informally “pressed Republicans to give him $5 billion as a down payment on his 21 wall.” 8 President Trump never amended his formal budget request, nor did he provide any

22 additional details concerning his informal request for $5 billion.

23

7 Office of Mgmt. & Budget, Fiscal Year 2019: Efficient, Effective, Accountable: An 24 American Budget 57 (2018), http://tinyurl.com/WHFY19BudgetRequest; see also Stronger Border

25 Security: 2019 Budget Fact Sheet, White House (Feb. 2018), http://tinyurl.com/WHFY18BudgetFactSheet (noting request for “1.6 billion for new border wall

26 in locations identified by the Border Patrol as necessary to obtain operational control of the border

and impede illegal crossings”).

27

8 Rachel Bade, Immigration Storm Bears Down on Republicans, Politico (July 2, 2018, 5:05

28 AM), http://tinyurl.com/PoliticoImmigrationStorm.

4
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 9 of 23

1

The initial Senate appropriations bill for DHS included $1.6 billion for approximately 65

2 miles of border fencing – the figure officially requested by the White House.9 S. 3109, 115th

3 Cong., tit. 2 (as reported by S. Comm. on Appropriations, June 21, 2018). Democrats indicated

4 that they would agree to pass the measure “so long as the language d[id] not require [the $1.6

5 billion] to be spent on the wall.”10 Near the end of the 115th Congress, however, Congress and the

6 President reached an impasse on appropriations for a border wall.

7

On December 11, 2018, President Trump held a televised meeting with Speaker of the

8 House (then-Minority Leader) Nancy Pelosi and Senate Minority Leader Chuck Schumer to

9 negotiate fiscal year 2019 appropriations for a border wall.11 At that meeting, President Trump 10 reiterated his demand for $5 billion for a border wall.12 He also warned that “[i]f we don’t get what

11 we want one way or the other, whether it’s through you, through a military, through anything you

12 want to call, I will shut down the government, absolutely.”13 He declared, “I am proud to shut

13 down the government for border security.”14

14

On December 19, 2018 – two days before funding for nine federal departments, including

15 DHS, was set to expire – the Senate passed a continuing resolution to fund the Government through

16 February 8, 2019.15 The Senate resolution did not include funding for a border wall.16 The next

17 day, the House approved a short-term funding bill appropriating $5.7 billion for “U.S. Customs and

18 Border Protection – Procurement, Construction, and Improvements.” 17 However, because

19

20

21

9See Lindsey McPherson, $1.6 Billion for Border Security, Not Just Wall, Could Be Agreed

To, Hoyer Says, Roll Call (Dec. 4, 2018, 12:46 PM), http://tinyurl.com/RollCallDec18.

22

10 Id. (emphasis added).

11 Aaron Blake, Trump’s Extraordinary Oval Office Squabble with Chuck Schumer and

23 Nancy

Pelosi,

Annotated,

Wash.

Post

(Dec.

11,

2018),

https://tinyurl.com/WaPoOvalOfficeSquabble.

24

12 Id.

25

13 Id. 14 Id.

26

15 See Further Additional Continuing Appropriations Act, 2019, H.R. 695, 115th Cong.

§ 101(1) (Dec. 19, 2018).

27

16 See id.

17 See H.R. 695, 115th Cong. § 141 (Dec. 20, 2018). 28

5
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 10 of 23

1 “Democrats w[ere] not . . . willing to support $5 billion in wall funding,” the Senate never

2 considered the House’s version of the legislation.18

3

Consistent with President Trump’s threats, appropriations for a substantial portion of the

4 Federal Government expired on December 21, 2018, see Pub. L. No. 115-298 (2018) (to be

5 published at 132 Stat. 4382), beginning the longest Federal Government shutdown in history. On

6 January 2, 2019, Speaker Pelosi stated that the incoming House would provide “nothing for the 7 wall.”19 On January 8, 2019, President Trump addressed the nation from the Oval Office, stating

8 that “there is a growing humanitarian and security crisis at our southern border.”20 He stated that

9 his “administration ha[d] presented Congress with a detailed proposal to secure the border,” 10 including “$5.7 billion for a physical barrier.”21 He implored Congress to “do[] its job” and “pass 11 a bill that ends this crisis.”22

12

On January 25, 2019, after it became apparent that the Government’s closure was causing

13 serious disruption throughout the nation, President Trump agreed to end the shutdown by signing 14 a continuing resolution to fund the Government through February 14, 2019.23 Between January 25

15 and February 14, a bipartisan conference committee was established to negotiate a deal to fund the

16

17

18 See Bo Erickson et al., House Passes Spending Bill with $5 Billion Border Wall Funding,

Increasing Likelihood of Shutdown, CBS News (Dec. 20, 2018, 9:00 PM),

18 http://tinyurl.com/CBSHousePassesBill. 19 Tal Axelrod, Pelosi on Negotiations with Trump: “Nothing for the Wall,” Hill (Jan. 2,

19 2019, 5:48 PM), http://tinyurl.com/HillNothingForWall.

20 Full Transcripts: Trump’s Speech on Immigration and the Democratic Response, N.Y. 20 Times (Jan. 8, 2019) (National Address Transcript), http://tinyurl.com/TrumpNationalAddress.

21

21 Id.; see also Letter from Russell T. Vought, Acting Dir., Office of Mgmt. & Budget, to

Senator Richard Shelby, Chairman, Senate Comm. on Appropriations (Jan. 6, 2019),

22 http://tinyurl.com/ShelbyLettertoApprops. The process for submitting and amending budget and appropriations requests to Congress is subject to rigorous and well-established guidelines and
23 procedures that were not followed here. See generally Office of Mgmt. & Budget, OMB Circular

No. A-11, Preparation, Submission, and Execution of the Budget (2018), 24 https://tinyurl.com/OMBCircularA11; U.S. Gov’t Accountability Office, GAO-16-464SP,

25 Principles of Federal Appropriations Law 2-15 (4th ed. 2016) (noting “long and exhaustive administrative process of budget preparation and review”), https://tinyurl.com/GAORedBook.

26

22 National Address Transcript, http://tinyurl.com/TrumpNationalAddress.

23 See Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5 (2019)

27 (to be printed at 133 Stat. 10); Kevin Liptak, Flight Delays Pile Pressure on Trump Amid Shutdown,

28 CNN (Jan. 25, 2019, 12:17 PM), http://tinyurl.com/CNNFlightDelays.

6
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 11 of 23

1 Government for fiscal year 2019.24 The committee ultimately reached a compromise that included

2 $1.375 billion for fencing along the border.25

3

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

4 L. No. 116-6 (2019) (to be printed at 133 Stat. 13). The Act appropriated $1.375 billion for

5 construction of fencing in the Rio Grande Valley area of the border but provided that in that area

6 “[n]one of the funds made available by this Act or prior Acts are available for the construction of

7 pedestrian fencing – (1) within the Santa Ana Wildlife Refuge; (2) within the Bentsen-Rio Grande

8 Valley State Park; (3) within La Lomita Historical Park; (4) within the National Butterfly Center;

9 or (5) within or east of the Vista del Mar Ranch tract of the Lower Rio Grande Valley National

10 Wildlife Refuge.” Id. § 231, 133 Stat. 28. Congress limited the funding for new fencing to

11 “operationally effective designs” that had been deployed as of 2017, “such as currently deployed

12 steel bollard designs, that prioritize agent safety.” Id. § 230(b), 133 Stat. 28. No other funding was

13 designated for the construction of a border wall.

14

On February 15, 2019, President Trump signed the 2019 Consolidated Appropriations Act

15 into law.26 Yet, on the same day he signed the Act, President Trump expressed his dissatisfaction

16 with the $1.375 billion that Congress had appropriated and announced that his Administration 17 would instead spend up to $8.1 billion on construction of a border wall.27 To use the words of Mr.

18 Mulvaney, the Administration decided to build the wall “without Congress.”28

19

Simply put, this is emphatically not how the Constitution designed the appropriations

20 process to operate: the Appropriations Clause dictates that defendants may only spend funds to

21 build a border wall with Congress. Because Congress has not appropriated $8.1 billion for the

22

23

24 See Jacob Pramuk, Trump Signs Bill to Temporarily Reopen Government after Longest

Shutdown in History, CNBC (Jan. 25, 2019, 9:58 PM), https://tinyurl.com/CNBCTrumpSignsBill.

24

25 Senate Appropriations Comm., Summary of DHS Fiscal Year 2019 Appropriations

Agreement, 2 (2019), http://tinyurl.com/SenateFY19AppropsSummary.

25

26 See Statement by the President, White House (Feb. 15, 2019),

26

https://tinyurl.com/WHTrumpStatement. 27 See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory; Feb. 15 Rose

27 Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks. 28 Andrew O’Reilly, Mulvaney Says Border Wall Will Get Built, ‘With or Without’ Funding

28 from Congress, Fox News (Feb. 10, 2019), https://tinyurl.com/MulvaneyFoxNewsSunday.

7
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 12 of 23

1 construction of a border wall, defendants may not constitutionally spend this amount on such

2 construction.

3

B. Defendants’ Asserted Authority Does Not Excuse Their Expenditure of Funds on

4

a Border Wall in the Absence of a Valid Appropriation

5

Defendants attempt to avoid the constitutional requirements by asserting the authority to

6 spend “[u]p to $2.5 billion under the Department of Defense funds transferred for Support for

7 Counterdrug Activities,” 10 U.S.C. § 284, and “[u]p to $3.6 billion reallocated from Department of

8 Defense military construction projects under the President’s declaration of a national emergency,”

9 10 U.S.C. § 2808.29 However, these statutory provisions do not authorize such expenditures, and

10 therefore provide no justification for the Administration’s blatant circumvention of Congress’s

11 constitutional authority over appropriations.

12

1. Defendants’ Transfer and Expenditure of $2.5 Billion under Section 284 on a

13

Border Wall Violates the Appropriations Clause

14

Defendants are not authorized to spend up to $2.5 billion of transferred funds under section

15 284 on the construction of a border wall. Section 284(a) provides that “[t]he Secretary of Defense

16 may provide support for the counterdrug activities . . . of any other department or agency of the

17 federal government” if “such support is requested[] by the official who has responsibility for the

18 counterdrug activities . . . of the department or agency of the Federal Government[.]” 10 U.S.C.

19 § 284(a), (a)(1)(A). Section 284(b) further provides that “[t]he purposes for which the Secretary

20 may provide support” include “[c]onstruction of roads and fences and installation of lighting to

21 block drug smuggling corridors across international boundaries of the United States.” Id. § 284(b),

22 (b)(7). Authority under this section does not depend on the President declaring a national

23 emergency.

24

For fiscal year 2019, Congress appropriated $517.171 million to the Drug Interdiction and

25 Counterdrug Activities appropriation fund (drug interdiction fund), which is the source of funding

26 for counter-narcotics support under section 284. Department of Defense and Labor, Health and

27 Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act,

28

29 See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.

8

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 13 of 23

1 2019, Pub. L. No. 115-245, div. A, tit. VI (2018) (to be printed at 132 Stat. 2981, 2997). The House

2 understands that most of this funding has already been used. To spend up to $2.5 billion under

3 section 284, defendants plan to first transfer funds that Congress appropriated for other purposes 4 into the drug interdiction fund.30 On March 25, 2019, defendants transferred an initial batch of $1

5 billion from funds that Congress appropriated for military personnel costs to the drug interdiction

6 fund.31 And on April 9, 2019, the Department of Defense (DOD) notified the House that contracts 7 have been awarded against this funding.32 DOD has also announced that “[t]hese funds will be

8 used to support DHS’s request to build 57 miles of 18-foot-high pedestrian fencing, constructing

9 and improving roads, and installing lighting within the Yuma and El Paso Sectors of the border[.]”33

10

It is a fundamental principle of appropriations law that “[a]n amount available under law

11 may be withdrawn from one appropriation account and credited to another or to a working fund

12 only when authorized by law.” 31 U.S.C. § 1532 (emphasis added). Defendants incorrectly claim

13 that section 8005 of the 2019 Department of Defense Appropriations Act authorizes the transfers

14 here. In pertinent part, section 8005 provides that

15

[u]pon determination by the Secretary of Defense that such action is necessary in

the national interest, he may, with the approval of the Office of Management and

16

Budget, transfer not to exceed $4,000,000,000 of working capital funds of the

Department of Defense or funds made available in this Act to the Department of

17

Defense for military functions (except military construction) between such

appropriations or funds or any subdivision thereof, to be merged with and to be

18

available for the same purposes, and for the same time period, as the appropriation

or fund to which transferred: Provided, That such authority to transfer may not be

19

used unless for higher priority items, based on unforeseen military requirements,

than those for which originally appropriated and in no case where the item for which

20

funds are requested has been denied by the Congress.

21 Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999. Three limitations on the transfer authority

22 provided by this section independently preclude defendants from transferring funds – including the

23 $1 billion already transferred – to construct a border wall.

24

30 See Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory.

25

31 See Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY 19-01

RA, Reprogramming Action (Mar. 25, 2019), https://tinyurl.com/March25Transfer.

26

32 See Press Release, U.S. Dep’t of Def., Contracts for April 9, 2019 (Apr. 9, 2019),

http://tinyurl.com/DoDApril9Contracts.

27

33 Press Release, U.S. Dep’t of Def., DOD Authorizes Support to Counter Drug Border

28 Security (Mar. 25, 2019), http://tinyurl.com/DoDMarch25PressRelease.

9
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 14 of 23

1

First, section 8005 only authorizes transfers of funds “for higher priority items, based on

2 unforeseen military requirements.” Congress included this limitation to confine DOD’s transfer

3 authority to situations where unanticipated circumstances justify a departure from Congress’s

4 previously authorized spending. For example, in the past, DOD has used this authority to transfer

5 funds to pay for unexpected hurricane and typhoon damage to bases.34 Here, defendants’ supposed

6 need to transfer money clearly does not arise from unforeseen circumstances. President Trump has 7 been demanding $5 billion for a border wall since summer 2018,35 and he has been complaining

8 about a supposed crisis at the border since the start of his campaign.36 Defendants’ alleged need to

9 build a border wall was therefore entirely foreseen – Congress simply disagreed with President

10 Trump’s opinion that $5 billion for a border wall was necessary and proper.

11

Second, section 8005 does not authorize the transfer of funds in cases “where the item for

12 which funds are requested has been denied by the Congress.” The “denied by the Congress”

13 restriction was added to DOD’s transfer authority starting in fiscal year 1974, to “tighten

14 congressional control of the reprogramming process.” H. Rep. No. 93-662, at 16 (1973); see Pub.

15 L. No. 93-238, § 735, 87 Stat. 1026, 1044 (1974). The House committee report on the 1974

16 appropriations bill explained that “[n]ot frequently, but on some occasions, the Department ha[d]

17 requested that funds which have been specifically deleted in the legislative process be restored

18 through the reprogramming process,” and that “[t]he Committee believe[d] that to concur in such

19 actions would place committees in the position of undoing the work of the Congress.” H. Rep. No.

20 93-662, at 16. Indeed, of considerable significance here, the Committee stated that such a position

21 would be “untenable.” Id. Consistent with its purpose, this sort of appropriations restriction is

22 intended to be “construed strictly” to “prevent the funding for programs which have been

23 considered by Congress and for which funding has been denied.” See H. Rep. No. 99-106, at 9

24

25

34 Office of the Under Secretary of Defense (Comptroller), DOD Serial No. FY 04-37 PA,

26

Reprogramming Action (Sept. 3, 2004), http://tinyurl.com/DOD2004ReprogrammingAction. 35 See Rachael Bade, Immigration Storm Bears Down on Republicans, Politico (July 2,

27 2018, 5:05 AM), http://tinyurl.com/PoliticoImmigrationStorm. 36 See Here’s Donald Trump’s Presidential Announcement Speech, Time (June 16, 2015),

28 http://tinyurl.com/TrumpAnnouncement.

10

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 15 of 23

1 (1985) (discussing analogous appropriations restriction in Pub. L. No. 99-169, § 502(b), 99 Stat.

2 1005 (codified at 50 U.S.C. § 3094(b))).

3

In the striking factual circumstances surrounding the Administration’s repeated demands

4 for border wall funding – which culminated in the longest Federal Government shutdown in history

5 – Congress’s rejection of President Trump’s request for $5 billion for a border wall was absolutely

6 clear. See supra section A. DOD’s use of its transfer authority to restore the funds “which have

7 been considered by Congress and . . . denied,” H. Rep. No. 99-106, at 9, is therefore “untenable,”

8 H. Rep. No. 93-662, at 16.

9

Finally, section 8005 does not authorize transfers for “military construction.” Section

10 2801(a) provides that “[t]he term ‘military construction’ as used in this chapter or any other

11 provision of law includes any construction development, conversion, or extension of any kind

12 carried out with respect to a military installation.” 10 U.S.C. § 2801(a). For the reasons set forth

13 in the next section, the construction of a border wall does not constitute “military construction”

14 because the border is not a “military installation.” If, however, the Court were to hold that the

15 construction of a border wall does constitute “military construction” – as defendants appear to urge

16 by invoking section 2808(a) – then defendants’ transfer of funds is not authorized under section

17 8005.

18

Accordingly, defendants’ transfer and expenditure of up to $2.5 billion to construct a border

19 wall under section 284 is unauthorized and violates the Appropriations Clause.

20

2. Defendants’ Expenditure of $3.6 Billion under Section 2808 on a Border Wall

21

Violates the Appropriations Clause

22

Defendants are likewise not authorized to spend up to $3.6 billion on the construction of a

23 border wall under section 2808. In full, section 2808(a) provides that

24

[i]n the event of a declaration of war or the declaration by the President of a national

emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et

25

seq.) that requires use of the armed forces, the Secretary of Defense, without regard

to any other provision of law, may undertake military construction projects, and may

26

authorize the Secretaries of the military departments to undertake military

construction projects, not otherwise authorized by law that are necessary to support

27

such use of the armed forces. Such projects may be undertaken only within the total

amount of funds that have been appropriated for military construction, including

28

funds appropriated for family housing, that have not been obligated.

11
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 16 of 23

1 10 U.S.C. § 2808(a). Defendants may not rely on section 2808(a) here because they comply with

2 none of its limitations.

3

The House does not dispute that the President has declared a national emergency pursuant

4 to the National Emergencies Act, 50 U.S.C. § 1601 et seq., a threshold requirement under section

5 2808(a). However, even where the President has declared a national emergency, section 2808(a)

6 sets forth three independent limitations on the expenditure of funds: (1) there must be a national

7 emergency “that requires the use of the armed forces,” (2) the funding must be spent on a “military

8 construction project,” and (3) the project must be “necessary to support the use of the armed

9 forces.” 10 U.S.C. § 2808(a).

10

First, there is no national emergency “that requires the use of the armed forces.” President

11 Trump’s emergency proclamation recognizes that the “problem of large-scale unlawful

12 migration . . . is longstanding.”37 Although the proclamation also states that “[t]he southern border

13 is a major entry point for criminals, gang members, and illicit narcotics,”38 border security is a 14 matter for domestic law enforcement.39 Indeed, that is precisely the job that Congress has tasked

15 and equipped Customs and Border Protection (CBP) – not the armed forces – to do.40 CBP is the

16 “largest federal law enforcement agency in the United States,” and its mission is to “safeguard 17 America’s borders.”41 Not only is it CBP’s job to ensure the security of the nation’s borders, but

18 the military is expressly prohibited by the Posse Comitatus Act, 18 U.S.C. § 1385,42 from making

19 “direct active use of Federal troops” to execute domestic law. United States v. Dreyer, 804 F.3d

20

21

37 See National Emergency Proclamation. 38 See id.

22

39 Defendants’ use of $601 million for the Treasury Forfeiture Fund to construct a border

wall, see Border Victory Fact Sheet, http://tinyurl.com/WHBorderVictory, also confirms that

23 construction of a border wall is a matter for law enforcement, because money from this fund may

only be applied to “law enforcement activities,” see 31 U.S.C. § 9705(g)(4)(B).

24

40 See, e.g., Snapshot: A Summary of CBP Facts and Figures, U.S. Customs & Border

25

Protection (Dec. 2018), http://tinyurl.com/CBPSnapshotDec18. 41 Id.

26

42 The Posse Comitatus Act applies only to “the Army or the Air Force.” 18 U.S.C. § 1385.

Similar restrictions, however, apply to other branches of the armed forces by statute and regulation. 27 See Jennifer K. Elsea, Cong. Research Serv., R42669, The Posse Comitatus Act and Related

28 Matters 3-5 (2018), https://tinyurl.com/CRSPosseComitatus.

12
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 17 of 23

1 1266, 1272 (9th Cir. 2015) (quotation marks omitted). It cannot be credibly maintained that the

2 armed forces are “required” to address the current supposed emergency. In fact, the Acting

3 Secretary of Defense recently admitted that the situation at the southern border is “not a military 4 threat.”43

5

President Trump’s proclamation claims that the situation at the border has “worsened” due

6 to “sharp increases in the number of family units entering and seeking entry to the United States 7 and an inability to provide detention space.”44 However, this trend has been apparent for years,45

8 and the humanitarian issues it raises are a matter for the domestic law enforcement agencies,46 not

9 the armed forces. Congress has equipped CBP to address the needs of these families, such as by

10 providing for family case management, supporting alternatives to detention, and increasing the 11 number of immigration judges.47 In addition, Congress’s fiscal year 2019 appropriation for CBP

12 provided “$14.959 billion for [CBP’s budget], $942 million more than fiscal year 2018,”

13 specifically to fund 600 additional CBP officers, and nearly half a billion dollars “to address

14 humanitarian concerns at the border, including medical care, more efficient transportation, and

15 holding facility requirements with better conditions and services for migrants.”48 As President

16

17

18

43 Department of Defense Budget Posture: Hearing Before the S. Comm. on Armed Servs.,

116th Cong. (2019) (statement of Patrick Shanahan, Acting Sec’y, Dep’t of Def.) (pre-published

19 stenographic transcript available at https://tinyurl.com/DefenseBudgetHearing).

44 National Emergency Proclamation.

20

45 See, e.g., Southwest Border Migration FY2017, U.S. Customs & Border Protection (Dec.

21

15, 2017), https://tinyurl.com/CBPFY17SWStats. 46 The Department of Health and Human Services also assists with caring for immigrant

22 children, see 8 U.S.C. §§ 1521, 1522(d) (“establish[ing], within the Department of Health and

Human Services, an office to be known as the Office of Refugee Resettlement,” which provides

23 “[a]ssistance for refugee children”), and it is not even a law enforcement agency, much less a

military one.

24

47 Compare Pub. L. No. 116-6 (FY 2019 CBP appropriations), with Pub. L. No. 115-141

25 (FY 2018 CBP appropriations). See generally H. Rep. No. 116-9, at 478-84 (2019) (explaining the 2019 increase in funds for family case management and directing ICE “to prioritize the use of ATD

26 [alternatives to detention] programs for families, including family case management, for which the

bill provides significant additional resources”).

27

48 Senate Appropriations Comm., Summary of DHS Fiscal Year 2019 Appropriations

28 Agreement, 1 (2019), http://tinyurl.com/SenateFY19AppropsSummary.

13
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 18 of 23

1 Trump expressed, Democrats appropriated for border security “so much money, we don’t know

2 what to do with it.”49

3

Second, a border wall is not a “military construction project” as that term is defined by

4 statute. See 10 U.S.C. § 2801(b) (defining “military construction project” as “all military

5 construction work . . . necessary to produce a complete and usable facility or a complete and usable

6 improvement to an existing facility[.]” (emphasis added)). The statute defines “military

7 construction project” with reference to the specifically defined term “military construction,” which

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

9 respect to a military installation.” Id. § 2801(a).50 And a “military installation” is defined to mean

10 “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of 11 a military department.” 51 Id. § 2801(c)(4). Thus, a “military construction project” is “military

12 construction work” “carried out with respect to a military installation” – i.e., “a base, camp, post,

13 station, yard, center, or other activity under the jurisdiction of the Secretary of a military

14 department.”

15

In this case, the border wall is not a “military construction project” because it is not “carried

16 out with respect to a military installation.”52 The southern border is clearly not a “base, camp, post,

17 station, yard, [or] center.” Nor is it some “other activity under the jurisdiction of the Secretary of

18 a military department.” “[W]here general words follow specific words in a statutory enumeration,

19 the general words are construed to embrace only objects similar in nature to those objects

20 enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

21

49 See Feb. 15 Rose Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks.

22

50 Section 2801(a) further states that military construction includes “any acquisition of land

or construction of a defense access road (as described in section 210 of title 23).”

23

51 This is the definition applicable to domestic military installations. “[I]n the case of an

activity in a foreign country,” the activity must be “under the operational control of the Secretary

24 of a military department or the Secretary of Defense.” 10 U.S.C. § 2801(c)(4).

52 Previous projects under section 2808 have included the construction of barracks hangars 25 and improvements to airfield runways. See Michael J. Vassalotti & Brendan W. McGarry, Cong.

26 Research Serv., IN11017, Military Construction Funding in the Event of a National Emergency 2 (2019), https://tinyurl.com/CRS-MilConFunding (listing all military construction projects under

27 section 2808(a) between 2001 and 2014). Notably – with the exception of one project related to

“[s]ecurity measures for weapons of mass destruction” – every project carried out under section

28 2808(a) has occurred abroad. See id. at 2-3.

14

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 19 of 23

1 114-15 (2001) (quotation marks omitted). Thus, for the southern border to qualify as some “other

2 activity under the jurisdiction of the Secretary of a military department” for purposes of section

3 2808(a), it must be “similar in nature” to a military “base, camp, post, station, yard, [or] center.”

4 The southern border of the United States obviously is like none of these places.

5

Defendants’ use of section 284 to build a border wall confirms that such construction does

6 not constitute “military construction.” As explained earlier, section 8005 does not authorize

7 transfers for purposes of “military construction,” see supra pp. 16-17, and defendants therefore

8 appear to concede that a border wall does not constitute military construction by invoking this

9 transfer authority to justify their transfer and expenditure of $2.5 billion. The Administration

10 cannot have it both ways: section 2808 prohibits reprogramming except for military construction

11 projects, while section 8005 prohibits the transfer of funds for military construction. Moreover,

12 section 284 authorizes the Secretary of Defense to construct fencing along the border only to

13 “provide support for the counterdrug activities . . . of any other department or agency of the Federal

14 Government” and only if “such support is requested . . . by the official who has responsibility” for

15 such activities. 10 U.S.C. § 284(a) (emphasis added). But if the border were “similar in nature” to

16 a “base, camp, post, station, yard, [or] center,” it would make little sense for Congress to have

17 limited the Secretary of Defense to constructing fencing only at the request of another agency.

18

Finally, a border wall is not “necessary to support [the] use of the armed forces.” Over the

19 last year, President Trump has ordered a few thousand troops to assist DHS and CBP at the border.53

20 Consistent with the Posse Comitatus Act, see supra p. 18, these troops are strictly limited to a

21 supporting role. They do not actively participate in law enforcement efforts but instead provide

22 assistance such as “aerial reconnaissance, ground surveillance, search and rescue support and

23 medical support.”54 There is no reason a border wall is “necessary” to support the troops in their

24

25

26

53 See Jim Garamone, Additional Personnel to Deploy to Southwest Border, U.S. Dep’t of

Def. (Oct. 26, 2018), https://tinyurl.com/BorderTroops.

27

54 Jim Garamone, DOD Officials Testify on Military Support to Southwest Border, U.S.

28 Dep’t of Def. (Jan. 29, 2019), http://tinyurl.com/DODJan29Article.

15
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 20 of 23

1 provision of such assistance, and President Trump himself admitted that he “didn’t need to do

2 this.”55

3

* * *

4

Defendants cannot satisfy the “strict threshold criteria” set forth in section 2808(a). I.N.S.

5 v. Phinpathya, 464 U.S. 183, 195 (1984). Defendants’ expenditure of section 2808(a) funds

6 circumvents the will of Congress and insults our “tripartite scheme of government” in which it is

7 “up to Congress” to control the federal purse. Id. at 196. Indeed, Congress’s rejection of President

8 Trump’s requested $5 billion for the construction of a border wall could not have been clearer.

9

Nor should the Court “stretch th[e] words [of section 2808(a)’s three limitations] beyond

10 their normal meaning” to excuse defendants’ transgression. Schneider v. Smith, 390 U.S. 17, 27

11 (1968). Section 2808 is one of scores of statutes that the President may invoke by declaring a

12 national emergency under the National Emergencies Act.56 That statute was enacted in 1976 “to

13 reform the existing maze of statutes which has resulted from the states of emergency under which 14 the country has been operating for over 40 years.”57 The National Emergencies Act was “not

15 intended to grant additional authority to the President,” but instead to make clear that “[t]he

16 President can only exercise those powers delegated to him in other statutes.” S. Rep. 94-1168, at

17 4 (1976); accord H. Rep. 94-238, at 5-6 (1975). That is why the Act itself “ma[de] no attempt to

18 define when a declaration of national emergency is proper.” S. Rep. 94-1168, at 3. Rather, “[t]he

19 circumstances authorizing a declaration of national emergency are defined by the statutes giving

20 the President the extraordinary powers to use in the case of a national emergency.” Id. at 4.

21

In other words, Congress declined to define what constitutes a “national emergency” in the

22 National Emergencies Act because it intended for the underlying statutes that provide emergency

23 authority – statutes like section 2808(a) – to limit the circumstances and manner in which such

24 authority could be exercised. See, e.g., supra pp. 15, 17. If courts refuse to enforce the limitations

25

26

55 See Feb. 15 Rose Garden Remarks, http://tinyurl.com/TrumpRoseGardenRemarks. 56 See A Guide to Emergency Powers and Their Use, Brennan Ctr. (Jan. 23, 2019),

27 http://tinyurl.com/BrennanCenterEmergencyPowers. 57 Press Release, White House, Statement by the President on Signing H.R. 3884, the

28 “National Emergencies Act” (Sept. 14, 1976), https://tinyurl.com/PressReleaseNEA.

16

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 21 of 23

1 set forth in such statutes, then the President’s emergency authority will once again be practically

2 unbounded. Only by strictly enforcing the limits of the President’s emergency statutory authority

3 can we ensure that it is not deployed with respect to “frivolous or partisan matters,” National

4 Emergencies Act: Hearing on H.R. 3884 Before the S. Comm. on Gov’t Operations, 94th Cong. 7

5 (1976) (statement of Sen. Frank Church), or – to use the words of President Trump’s proclamation

6 – “longstanding” problems that should be addressed through the proper political channels.

7

Accordingly, as with defendants’ proposed expenditure under section 284, defendants’

8 proposed expenditure of up to $3.6 billion under section 2808(a) on the construction of a border

9 wall is unauthorized and violates the Appropriations Clause.

10

CONCLUSION

11

Defendants have evaded the Constitution in their haste to build a wall along the southern

12 border “with or without Congress.” The Constitution – not President Trump’s desire to build the

13 wall “faster” – is the “ultimate expression of the public interest,” Gordon, 721 F.3d at 653

14 (quotation marks omitted), and “all citizens have a stake” in ensuring that defendants do not

15 irrevocably offend that document during the period required to litigate this case, Hernandez, 872

16 F.3d at 996 (quotation marks omitted). The Court should therefore issue a preliminary injunction

17 prohibiting defendants from transferring and spending funds in excess of what Congress

18 appropriated for counter-narcotics support under 10 U.S.C. § 284 and from spending funds under

19 10 U.S.C. § 2808(a) on the construction of a wall along the southern border.

20

21

22

23

24

25

26

27

28 17
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 22 of 23

1

Respectfully submitted,

2

/s/ Douglas N. Letter

DOUGLAS N. LETTER (D.C. Bar No. 253492)

3

General Counsel

4

TODD B. TATELMAN (VA Bar No. 66008) Deputy General Counsel

5

MEGAN BARBERO (MA Bar No. 668854)

Associate General Counsel

6

KRISTIN A. SHAPIRO (D.C. Bar No. 1007010)

Assistant General Counsel

7

BROOKS M. HANNER (D.C. Bar No. 1005346)

8

Assistant General Counsel SARAH E. CLOUSE (MA Bar No. 688187)

9

Attorney

10 11 12 13 14 15
April 15, 2019 16

OFFICE OF GENERAL COUNSEL* U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) douglas.letter@mail.house.gov
Counsel for Amicus Curiae the United States House of Representatives

17

18

19

20

21

22

23

24

25

26

* Attorneys for the Office of General Counsel for the U.S. House of Representatives are

“entitled, for the purpose of performing the counsel’s functions, to enter an appearance in any

27 proceeding before any court of the United States or of any State or political subdivision thereof

without compliance with any requirements for admission to practice before such court.” 2 U.S.C.

28 § 5571.

18

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 47 Filed 04/15/19 Page 23 of 23

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 15, 2019, I caused the foregoing document to be filed via the

3 U.S. District Court for the Northern District of California’s CM/ECF system, which I understand

4 caused service on all registered parties.

5

/s/ Douglas N. Letter

6

Douglas N. Letter

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

 
 Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 1 of 56

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

SIERRA CLUB, et al.,

8

Plaintiffs,

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 19-cv-00892-HSG
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Re: Dkt. No. 29

12

13

On February 19, 2019, Sierra Club and Southern Border Communities Coalition (“SBCC”)

14 (collectively, “Citizen Group Plaintiffs” or “Citizen Groups”) filed suit against Defendants Donald

15 J. Trump, in his official capacity as President of the United States; Patrick M. Shanahan, in his

16 official capacity as Acting Secretary of Defense; Kevin K. McAleenan, in his official capacity as

17 Acting Secretary of Homeland Security1; and Steven T. Mnuchin, in his official capacity as

18 Secretary of the Department of the Treasury (collectively, “Federal Defendants”). Dkt. No. 1.

19 This action followed a related suit brought by a coalition of states (collectively, “Plaintiff States”

20 or “States”) against the same—and more—Federal Defendants. See Complaint, California v.

21 Trump, No. 4:19-cv-00872-HSG (N.D. Cal. Feb. 18, 2019), ECF No. 1. Plaintiffs here filed an

22 amended complaint on March 18, 2019. Dkt. No. 26 (“FAC”).

23

Now pending before the Court is Plaintiffs’ motion for a preliminary injunction, briefing

24 for which is complete. See Dkt. Nos. 29 (“Mot.”), 64 (“Opp.”), 91 (“Reply”). The Court held a

25 hearing on this motion on May 17, 2019. See Dkt. No. 138. In short, Plaintiffs seek to prevent

26 executive officers from using redirected federal funds for the construction of a barrier on the U.S.-

27

28

1 Acting Secretary McAleenan is automatically substituted for former Secretary Kirstjen M. Nielsen. See Fed. R. Civ. P. 25(d).

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 2 of 56

United States District Court Northern District of California

1 Mexico border.

2

It is important at the outset for the Court to make clear what this case is, and is not, about.

3 The case is not about whether the challenged border barrier construction plan is wise or unwise. It

4 is not about whether the plan is the right or wrong policy response to existing conditions at the

5 southern border of the United States. These policy questions are the subject of extensive, and

6 often intense, differences of opinion, and this Court cannot and does not express any view as to

7 them. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (indicating that the Supreme Court

8 “express[ed] no view on the soundness of the policy” at issue there); In re Border Infrastructure

9 Envtl. Litig., 284 F. Supp. 3d 1092, 1102 (S.D. Cal. 2018) (noting that the court “cannot and does

10 not consider whether underlying decisions to construct the border barriers are politically wise or

11 prudent”). Instead, this case presents strictly legal questions regarding whether the proposed plan

12 for funding border barrier construction exceeds the Executive Branch’s lawful authority under the

13 Constitution and a number of statutes duly enacted by Congress. See In re Aiken Cty., 725 F.3d

14 255, 257 (D.C. Cir. 2013) (“The underlying policy debate is not our concern. . . . Our more

15 modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set

16 by Congress.”).

17

Assessing whether Defendants’ actions not only conform to the Framers’ contemplated

18 division of powers among co-equal branches of government but also comply with the mandates of

19 Congress set forth in previously unconstrued statutes presents a Gordian knot of sorts. But the

20 federal courts’ duty is to decide cases and controversies, and “[t]hose who apply the rule to

21 particular cases, must of necessity expound and interpret that rule.” See Marbury v. Madison, 1

22 Cranch 137, 177 (1803). Rather than cut the proverbial knot, however, the Court aims to untie

23 it—no small task given the number of overlapping legal issues. And at this stage, the Court then

24 must further decide whether Plaintiffs have met the standard for obtaining the extraordinary

25 remedy of a preliminary injunction pending resolution of the case on the merits.

26

After carefully considering the parties’ arguments, the Court GRANTS IN PART and

27 DENIES IN PART Plaintiffs’ motion.

28 // 2

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 3 of 56

United States District Court Northern District of California

1 I. FACTUAL BACKGROUND

2

The President has long voiced support for a physical barrier between the United States and

3 Mexico. See, e.g., Request for Judicial Notice, California v. Trump, No. 4:19-cv-00872-HSG

4 (N.D. Cal. Apr. 8, 2019), ECF No. 59-4 (“States RJN”) Ex. 3 (June 16, 2016 Presidential

5 Announcement Speech) (“I would build a great wall, and nobody builds walls better than me,

6 believe me, and I’ll build them very inexpensively, I will build a great, great wall on our southern

7 border. And I will have Mexico pay for that wall.”).2 Upon taking office in 2017, the President’s

8 administration repeatedly sought appropriations from Congress for border barrier construction.

9 See, e.g., Budget of the U.S. Government: A New Foundation for American Greatness: Fiscal Year

10 2018, Office of Mgmt. & Budget 18 (2017), https://www.whitehouse.gov/wp-

11 content/uploads/2017/11/budget.pdf (requesting “$2.6 billion in high-priority tactical

12 infrastructure and border security technology, including funding to plan, design, and construct a

13 physical wall along the southern border”). Congress provided some funding, including $1.571

14 billion for fiscal year 2018. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div.

15 F, tit. II, § 230(a) 132 Stat. 348 (2018). And Congress considered several bills that, if passed,

16 would have authorized or otherwise appropriated billions of dollars more for border barrier

17 construction. See States RJN Exs. 14–20. None passed.

18

In December 2018—as Congress and the President were negotiating an appropriations bill

19 to fund various federal departments for what remained of the fiscal year—the President announced

20 that he would not sign any funding legislation that lacked substantial funds for border barrier

21 construction. Farm Bill Signing, C-SPAN (Dec. 20, 2018), https://www.c-

22

23 2 Defendants do not oppose the Plaintiff States’ request to take judicial notice of various

24

documents. The Court finds it may take judicial notice of documents from Plaintiff States’ request that are cited in this order, all of which are: (1) statements of government officials or entities that

25

are not subject to reasonable dispute; (2) bills considered by Congress or other legislative history; or (3) other public records and government documents available on reliable internet sources, such

26

as government websites. See DeHoog v. Anheuser-Busch InBev SA/NV, 899 F.3d 758, 763 n.5 (9th Cir. 2018) (taking “judicial notice of government documents, court filings, press releases, and

27

undisputed matters of public record”); Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017) (taking judicial notice of President’s tweets), vacated on other grounds, 138 S. Ct. 377 (2017);

28

Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“Legislative history is properly a subject of judicial notice.”).

3

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 4 of 56

United States District Court Northern District of California

1 span.org/video/?456189-1/president-government-funding-bill-include-money-border-wall (“I’ve

2 made my position very clear. Any measure that funds the government must include border

3 security. . . . Walls work whether we like it or not. They work better than anything.”). Congress

4 did not pass a bill with the President’s desired border barrier funding and, due to this impasse, the

5 United States entered into the nation’s longest partial government shutdown.

6

The President and those in his administration stated on several occasions before, during,

7 and after the shutdown that, although Congress should make the requisite funds available for

8 border barrier construction, the President was willing to use a national emergency declaration and

9 other reprogramming mechanisms as funding backstops. For example, during a December 11,

10 2018 meeting with congressional representatives, the President stated that “if we don’t get what

11 we want [for border barrier construction funding], one way or the other – whether it’s through

12 [Congress], through a military, through anything you want to call [sic] – I will shut down the

13 government. Absolutely.” States RJN Ex. 21. The White House initially requested only $1.6

14 billion for border barrier construction for the fiscal year 2019 budget, for sixty-five miles of border

15 barrier construction “in south Texas.” See Supplemental Request for Judicial Notice, California v.

16 Trump, No. 4:19-cv-00872-HSG (N.D. Cal. Apr. 8, 2019), ECF No. 112-1, Ex. 51, at 58.

17 However, the White House increased its request on January 6, 2019, when the Acting Director of

18 the Office of Management and Budget transmitted a letter to the U.S. Senate Committee on

19 Appropriations, “request[ing] $5.7 billion for construction of a steel barrier for the Southwest

20 border,” and explaining that the request “would fund construction of a total of approximately 234

21 miles of new physical barrier.” See Dkt. No. 36 (“Citizen Groups RJN”) Ex. A, at 1.3 The

22 increased request specified that “[a]ppropriations bills for fiscal year (FY) 2019 that have already

23 been considered by the current and previous Congresses are inadequate to fully address these

24 critical issues,” including the need for border barrier construction funds. Id. Days later, the

25 President explained: “If we declare a national emergency, we have a tremendous amount of funds

26

27 3 The Court takes judicial notice of documents submitted by the Citizen Group Plaintiffs,

28

consideration of which Defendants do not oppose, and the accuracy of the contents of which similarly “cannot be questioned.” See discussion supra note 2.

4

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 5 of 56

United States District Court Northern District of California

1 – tremendous – if we want to do that, if we want to go that route. Again, there is no reason why

2 we can’t come to a deal. . . . [Congress] could stop this problem in 15 minutes if they wanted to.”

3 States RJN Ex. 13.

4

After the government shutdown ended, the President and others in his administration

5 reaffirmed their intent to fund a border barrier, with or without Congress’s blessing. On February

6 9, 2019, the President explained that even if Congress provided less than the requested funding for

7 a border barrier, the barrier “[would] get built one way or the other!” Citizen Groups RJN Ex. C.

8 The next day, the Acting White House Chief of Staff explained that the Administration intended to

9 accept whatever funding Congress would offer and then use other measures to reach the

10 President’s desired funding level for border barrier construction:

11

The President is going to build a wall. You saw what the Vice-

President said there, and that’s our attitude at this point, which is:

12

We’ll take as much money as you can give us, and then we’ll go off

and find the money someplace else, legally, in order to secure that

13

southern barrier. But this is going to get built, with or without

Congress. 14

15 See Fox News, Mick Mulvaney on chances of border deal, Democrats ramping up investigation of

16 Trump admin, YouTube (Feb. 10, 2019), https://www.youtube.com/watch?v=l_Z0xx_zS0M. He

17 went on to detail that the Administration was prepared to both reprogram money and declare a

18 national emergency to unlock funds:

19

There are other funds of money that are available to [the President]

through what we call reprogramming. There is money that he can get

20

at and is legally allowed to spend, and I think it -- needs to be said

again and again that all of this is going to be legal. There are statutes

21

on the books as to how any President can do this. . . . There are certain

funds of money that he can get to without declaring a national

22

emergency and other funds that he can only get to after declaring a

national emergency. 23

24 Id. All told, the “whole pot” of such funds was “well north of $5.7 billion.” Id. And with respect

25 to a national emergency declaration in particular, the Acting White House Chief of Staff

26 explained: “The President doesn’t want to do it. . . . He would prefer legislation because that’s

27 the right way to go, and it’s the proper way to spend money in this country.” Id.

28

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

5

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 6 of 56

United States District Court Northern District of California

1 (“CAA”), Pub. L. No. 116-6, 133 Stat. 13 (2019). The CAA consolidated separate appropriations

2 acts related to different federal agencies into one bill, including for present purposes the DHS

3 Appropriations Act for Fiscal Year 2019. See id., div. A. The CAA made available $1.375

4 billion—less than one quarter of the $5.7 billion sought by the President—“for the construction of

5 primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.”

6 Id. § 230(a)(1), 133 Stat. at 28. Congress limited the use of these funds both as to the type of

7 pedestrian fencing—only “operationally effective designs deployed as of the date of the

8 Consolidated Appropriations Act, 2017 . . . such as currently deployed steel bollard designs”—and

9 geographically—no funds were available for construction within (1) the Santa Ana Wildlife

10 Refuge, (2) the Bentsen-Rio Grande Valley State Park, (3) La Lomita Historical park, (4) the

11 National Butterfly Center, or (5) within or east of the Vista del Mar Ranch tract of the Lower Rio

12 Grande Valley National Wildlife Refuge. Id. §§ 230(b), 231, 133 Stat. at 28. The CAA further

13 imposed notice and comment requirements prior to the use of any funds for the construction of

14 barriers within certain city limits. Id. § 232, 133 Stat. at 28–29. Section 739 of the CAA

15 provided:

16

None of the funds made available in this or any other appropriations

Act may be used to increase, eliminate, or reduce funding for a

17

program, project, or activity as proposed in the President’s budget

request for a fiscal year until such proposed change is subsequently

18

enacted in an appropriation Act, or unless such change is made

pursuant to the reprogramming or transfer provisions of this or any

19

other appropriations Act.

20 Id. § 739, 133 Stat. at 197.

21

On February 15, 2019, the President not only signed the CAA into law but also issued a

22 proclamation “declar[ing] that a national emergency exists at the southern border of the United

23 States.” Proclamation No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019). In announcing the national

24 emergency declaration, the President declared that although he “went through Congress” for the

25 $1.375 billion in funding, he was “not happy with it.” States RJN Ex. 50. The President added: “I

26 could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much

27 faster. . . . And I think that I just want to get it done faster, that’s all.” Id.

28

The proclamation itself provided:

6

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 7 of 56

United States District Court Northern District of California

1

The current situation at the southern border presents a border security

and humanitarian crisis that threatens core national security interests

2

and constitutes a national emergency. The southern border is a major

entry point for criminals, gang members, and illicit narcotics. The

3

problem of large-scale unlawful migration through the southern

border is long-standing, and despite the executive branch’s exercise

4

of existing statutory authorities, the situation has worsened in certain

respects in recent years. In particular, recent years have seen sharp

5

increases in the number of family units entering and seeking entry to

the United States and an inability to provide detention space for many

6

of these aliens while their removal proceedings are pending. If not

detained, such aliens are often released into the country and are often

7

difficult to remove from the United States because they fail to appear

for hearings, do not comply with orders of removal, or are otherwise

8

difficult to locate. In response to the directive in my April 4, 2018,

memorandum and subsequent requests for support by the Secretary of

9

Homeland Security, the Department of Defense has provided support

and resources to the Department of Homeland Security at the southern

10

border. Because of the gravity of the current emergency situation, it

is necessary for the Armed Forces to provide additional support to

11

address the crisis.

12 Proclamation No. 9844, 84 Fed. Reg. 4,949. The proclamation then invoked and made available

13 to relevant Department of Defense (“DoD”) personnel two statutory authorities. First, the

14 proclamation made available the authority to “order any unit, and any member not assigned to a

15 unit organized to serve as a unit, in the Ready Reserve . . . to active duty for not more than 24

16 consecutive months,” under 10 U.S.C. § 12302. Id. Second, the proclamation made available “the

17 construction authority provided in [10 U.S.C. § 2808].” Id. As is necessary to invoke Section

18 2808, the proclamation “declar[ed] that this emergency requires use of the Armed Forces.” Id.;

19 see also 10 U.S.C. § 2808(a) (limiting construction authority to presidential declarations “that

20 require[] use of the armed forces”).

21

As additional information regarding the national emergency declaration, the White House

22 simultaneously issued a “fact sheet[],” which explained that “the Administration [had] so far

23 identified up to $8.1 billion that will be available to build the border wall once a national

24 emergency is declared.” Citizen Groups RJN Ex. G. The White House specifically identified

25 three funding sources, purportedly to be used sequentially:

26

• “About $601 million from the Treasury Forfeiture Fund” (“TFF”);

27

• “Up to $2.5 billion under the Department of Defense funds transferred for Support for

28

Counterdrug Activities” (10 U.S.C. § 284) (“Section 284”); and

7

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 8 of 56

United States District Court Northern District of California

1

• “Up to $3.6 billion reallocated from Department of Defense military construction

2

projects under the President’s declaration of a national emergency” (10 U.S.C. § 2808)

3

(“Section 2808”).

4 Id.

5

In declaring a national emergency, the President invoked his authority under the National

6 Emergencies Act (“NEA”), Pub. L. 94–412, 90 Stat. 1255 (1976) (codified as amended at 50

7 U.S.C. §§ 1601–1651). This appears to have been the first time in American history that a

8 President declared a national emergency to secure funding previously withheld by Congress. As

9 another historical first, Congress passed a joint resolution to terminate the President’s declaration

10 of a national emergency. See H.R.J. Res. 46, 116th Cong. (2019). The President vetoed

11 Congress’s joint resolution on March 15, 2019.4 See Veto Message to the House of

12 Representatives for H.J. Res. 46, The White House (Mar. 15, 2019),

13 https://www.whitehouse.gov/briefings-statements/veto-message-house-representatives-h-j-res-46/.

14 The House voted 248-181 to override the President’s veto, which fell short of the required two-

15 thirds majority. 165 Cong. Rec. 2,799, 2,814–15 (2019).

16

Following the President’s national emergency declaration, executive officers reaffirmed

17 what the President and his administration had been saying for months: the Administration was

18 content to first request border barrier construction funding from Congress, and then augment

19 whatever they received with funds from alternative sources. Then-Secretary of Homeland

20 Security Nielsen described this mindset on March 6, 2019, while testifying before the House

21 Homeland Security Committee: “[The President] hoped Congress would act, that it didn’t have to

22 come to issuing an emergency declaration, if Congress had met his request to fund the resources

23 that [U.S. Customs and Border Protection (“CBP”)] has requested.” 3/6/2019 Nielsen Testimony,

24 C-SPAN (Mar. 6, 2019), https://www.c-span.org/video/?c4787939/362019-nielsen-testimony.

25

Since the national emergency declaration, Defendants have taken significant steps toward

26 using the funds at issue in this motion for border barrier construction. On February 15, 2019, the

27

28

4 As described below, the Congress that passed the NEA did not contemplate the possibility of a presidential veto.

8

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 9 of 56

United States District Court Northern District of California

1 Treasury approved a request from the Department of Homeland Security (“DHS”) to make

2 available up to $601 million from the Treasury Forfeiture Fund, which Defendants “intend[] to

3 obligate . . . before the end of Fiscal Year 2019.” See Case No. 4:19-cv-00872-HSG, ECF No. 89-

4 8 (“Flossman Second Decl.”) ¶¶ 9, 11. On February 25, 2019, DHS submitted a request to DoD

5 for assistance blocking drug-smuggling corridors under Section 284. See Dkt. No. 64-8

6 (“Rapuano Decl.”) ¶ 3; States RJN Ex. 33. And on March 25, 2019, in response to DHS’s request,

7 the Acting Secretary of Defense—Defendant Shanahan—approved the diversion of funds from

8 DoD’s counter-narcotics support budget for three “drug-smuggling corridors” identified by DHS:

9 one located in New Mexico—El Paso Project 1—and two located in Arizona—Yuma Sector

10 Projects 1–2.5 Rapuano Decl. ¶¶ 4, 7–9. Construction related to these projects may begin as soon

11 as May 25, 2019. See id. ¶ 10 (providing that construction “will begin no earlier than May 25,

12 2019”).

13

To fund the Section 284 diversion, Defendant Shanahan simultaneously invoked Section

14 8005 of the most-recent DoD appropriations act to “reprogram” $1 billion from Army personnel

15 funds to the counter-narcotics support budget. See id. ¶ 5; States RJN Ex. 34; see also Department

16 of Defense Appropriations Act, 2019, Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999 (2018).

17 Defendant Shanahan also formally notified Congress of the authorization, explaining that

18 reprogrammed funds under Section 8005 were “required” so that DoD could provide DHS the

19 support it requested under Section 284. States RJN Ex. 32, at 1; see also id. Ex. 33, at 2 (DHS’s

20 February 25, 2019 request for support under Section 284).

21

The next day, Defendant Shanahan appeared before the House Armed Services Committee

22 to testify in support of the President’s budget request for fiscal year 2020. See Case No. 4:19-cv-

23 00872-HSG, ECF No. 89-12. The Committee Chairman asked Defendant Shanahan why DoD did

24 not first seek approval from relevant congressional committees before reprogramming funds under

25 Section 8005, as would have been consistent with a “gentlemen’s agreement[]” between Congress

26

27 5 Defendants have since elected not to fund or construct Yuma Project 2 using funds

28

reprogrammed or diverted under Sections 8005 or 284. See Dkt. No. 118-1 (“Rapuano Second Decl.”) ¶ 4.

9

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 10 of 56

United States District Court Northern District of California

1 and the Executive. Id. at 13 (“But one of the sort of gentlemen’s agreements about [giving

2 reprogramming authority for up to $4 billion last year] was if you reprogram money, you will not

3 do it without first getting the approval of all for [sic] relevant committees . . . . For the first time

4 since we’ve [given such reprogramming authority] . . . . you are not asking for our permission.”).

5 The Chairman noted that “the result of” ignoring the gentlemen’s agreement likely would be

6 Congress declining to provide such broad reprogramming authority in the future. Id. Defendant

7 Shanahan conceded that “discretionary reprogramming” was “traditionally done in coordination”

8 with Congress, but explained that the Administration discussed unilateral reprogramming “prior to

9 the declaration of a national emergency,” recognized “the significant downsides of the [sic] losing

10 what amounts to a privilege,” and nonetheless decided to move forward with unilaterally

11 reprogramming funds despite that risk. Id. at 14. The same day as the hearing, both the House

12 Committee on Armed Services and the House Committee on Appropriations formally disapproved

13 of the Section 8005 reprogramming. See States RJN Ex. 35 (“The committee denies this request.

14 The committee does not approve the proposed use of [DoD] funds to construct additional physical

15 barriers and roads or install lighting in the vicinity of the United States border.”); id. Ex. 36 (“The

16 Committee has received and reviewed the requested reprogramming action . . . . The Committee

17 denies the request.”).

18

On April 24, 2019, Defendant McAleenan, the Acting Secretary of Homeland Security,

19 published in the Federal Register notices of determination concerning the “construction of barriers

20 and roads in the vicinity of the international land border in Luna County, New Mexico and Doña

21 Ana County, New Mexico,” and “in Yuma County, Arizona”—in other words, areas encompassed

22 by the El Paso Sector and Yuma Sector Projects. See Determination Pursuant to Section 102 of

23 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed.

24 Reg. 17,185, 17,186 (Apr. 24, 2019); Determination Pursuant to Section 102 of the Illegal

25 Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg.

26 17,187 (Apr. 24, 2019). The Acting Secretary invoked his authority under Section 102(c) of the

27

28 10

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 11 of 56

United States District Court Northern District of California

1 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)6 “to waive all

2 legal requirements that [he], in [his] sole discretion, determine[d] necessary to ensure the

3 expeditious construction of barriers and roads authorized by section 102 of IIRIRA.” See, e.g., 84

4 Fed. Reg. at 17,186. The waiver asserts that “areas in the vicinity of the United States border,

5 located in [these regions], are areas of high illegal entry,” for which “[t]here is presently an acute

6 and immediate need to construct physical barriers and roads.” See id. The designated “Project

7 Areas” encompass all portions of New Mexico and Arizona for which Defendants presently intend

8 to construct physical barriers. Finding this action “necessary,” the Acting Secretary invoked

9 Section 102(c) to waive “in their entirety” numerous federal laws—including the National

10 Environmental Policy Act (“NEPA”), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as

11 amended at 42 U.S.C. §§ 4321–4370b)—“with respect to the construction of physical barriers and

12 roads . . . in the project area[s].” See id.

13

On May 8, 2019, Defendant Shanahan, appearing before the Senate Defense

14 Appropriations Subcommittee, testified: “We now have on contract sufficient funds to build about

15 256 miles of barrier,” explaining that this funding derived in part from “treasury forfeiture funds,

16 as well as reprogramming.” Acting Defense Secretary Shanahan Testifies on 2020 Budget

17 Request, C-SPAN (May 8, 2019), https://www.c-span.org/video/?460437-1/acting-defense-

18 secretary-shanahan-testifies-2020-budget-request. Defendant Shanahan estimated that “sixty-three

19 new miles will come online” from these contracts in the next six months, or “half a mile a day.”

20 Id. The same day, DoD reported selecting twelve companies to compete for up to $5 billion worth

21 of border barrier construction contracts. Contracts for May 8, 2019, U.S. Dep’t of Def. (May 8,

22 2019), https://dod.defense.gov/News/Contracts/Contract-View/Article/1842189/.

23

The next day, Defendant Shanahan authorized an additional $1.5 billion in funding for

24 border barrier construction, in further response to DHS’s February 25, 2019 request for support

25

26 6 Pub. L. No. 104–208, div. C, 110 Stat. 3009, 3009–554 (Sept. 30, 1996), as amended by the

27

REAL ID Act of 2005, Pub. L. No. 109–13, div. B, 119 Stat. 231, 302, 306 (May 11, 2005), as amended by the Secure Fence Act of 2006, Pub. L. No. 109–367, § 3, 120 Stat. 2638, 2638–39

28

(Oct. 26, 2006), as amended by the Department of Homeland Security Appropriations Act, 2008, Pub. L. No. 110–161, div. E, tit. V, § 564, 121 Stat. 1844, 2090–91 (Dec. 26, 2007).

11

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 12 of 56

United States District Court Northern District of California

1 under Section 284, for four projects: one located in California—El Centro Project 1—and three

2 located in Arizona—Tucson Sector Projects 1–3. See Rapuano Second Decl. ¶ 6; see also

3 Rapuano Decl. Ex. A, at 3, 6–7 (describing project locations). To fund these projects, Defendant

4 Shanahan again invoked Section 8005, “as well as DoD’s special transfer authority under section

5 9002 of the Department of Defense Appropriations Act, 2019, and section 1512 of the John S. 6 McCain National Defense Authorization Act for Fiscal Year 2019.”7 Rapuano Second Decl. ¶ 7.

7 Defendants anticipate that construction will begin with these funds as early as July 2019. Id.

8 ¶¶ 10–11 (noting Defendants’ expectation of awarding contracts by May 16, 2019, forty-five days

9 after which construction may begin). And on May 15, 2019, Defendant McAleenan issued NEPA

10 waivers for the El Centro Sector and Tucson Sector Projects. See Determination Pursuant to

11 Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as

12 Amended, 84 Fed. Reg. 21,798 (May 15, 2019) (waiving NEPA requirements for Tucson Sector

13 Projects); Determination Pursuant to Section 102 of the Illegal Immigration Reform and

14 Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 21,800 (May 15, 2019)

15 (waiving NEPA requirements for El Centro Sector Project).

16

At the hearing on this motion, the parties agreed that the Court need not yet address the

17 lawfulness of Defendants’ newly announced reprogramming and subsequent diversion of funds for

18 border barrier construction in the El Centro Sector and Tucson Sector Projects, pending further

19 development of the record as to those projects.

20 //

21 //

22 //

23 //

24

25 7 Defendants’ Section 9002 authority is, at a minimum, subject to Section 8005’s limitations. See

26

Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, § 9002, 132 Stat. 2981, 3042 (2018) (providing that “the authority provided in this section is in addition to any other

27

transfer authority available to the Department of Defense and is subject to the same terms and conditions as the authority provided in section 8005 of this Act”); see also Dkt. No. 131, at 4

28

(acknowledging that Section 9002 “incorporates the requirements of [Section] 8005 by reference”).

12

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 13 of 56

United States District Court Northern District of California

1 II. STATUTORY FRAMEWORK

2

A. The National Emergencies Act

3

In 1976, Congress enacted the National Emergencies Act “to insure that the exercise of

4 national emergency authority is responsible, appropriate, and timely.” Comm. on Gov’t

5 Operations & the Special Comm. on Nat’l Emergencies & Delegated Emergency Powers, 94th

6 Cong., 2d Sess., The National Emergencies Act (Public Law 94–412) Source Book: Legislative

7 History, Texts, and Other Documents, at 1 (1976) (“NEA Source Book”). The NEA rescinded

8 several existing national emergencies, repealed many statutes, and created procedural guidelines

9 for congressional oversight over future presidents’ declarations of national emergencies.

10

The NEA first permits that after “specifically declar[ing] a national emergency,” the

11 president may exercise emergency powers authorized by Congress in other federal statutes. 50

12 U.S.C. § 1621. To exercise any statutory emergency power, the president must first specify the

13 power or authority under which the president or other officers will act, “either in the declaration of

14 a national emergency, or by one or more contemporaneous or subsequent Executive orders

15 published in the Federal Register and transmitted to the Congress.” Id. § 1631.

16

Section 1622 then establishes a procedure for Congress to terminate any declared national

17 emergency through a joint resolution.8 As initially drafted, Congress meant for the joint resolution

18 to terminate the declared national emergency by itself—the NEA did not require a presidential

19 signature on the joint resolution, nor was it subject to a presidential veto. In part because

20 Congress had power under the NEA to terminate national emergencies with a simple majority in

21 both houses, Congress neither defined the term “national emergency,” nor “ma[de] any attempt to

22 define when a declaration of national emergency is proper.” NEA Source Book at 9, 278–92. In

23 rejecting a proposed amendment to the NEA that would have “spelled out” for the executive what

24 may constitute a national emergency, the House of Representatives observed the “impossibility”

25 of future presidents vetoing any joint resolution. Id. at 279–80. House members there observed:

26

27

8 The initial version of the NEA referred to a “concurrent resolution.” That language was changed to “joint resolution” in 1985. See Foreign Relations Authorization Act, “22 USC 2651 note”

28

Fiscal Years 1986 and 1987, Pub. L. No. 99-93, § 801(1)(A), 99 Stat. 405, 448 (1985). For simplicity’s sake, the Court only uses the term “joint resolution,” as the statute now reads.

13

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 14 of 56

United States District Court Northern District of California

1 2 3 4 5 6 7 8 9 10 Id.

Mr. Conyers. . . . Mr. Chairman, my final participation in this debate revolves around the reason of this question: What happens if the President of the United States vetoes the congressional termination of the emergency power? Is that contemplatable within the purview of this legislation?
. . .
Mr. Flowers. Mr. Chairman, on the advice of counsel we have researched that thoroughly. A concurrent resolution would not require Presidential signature of acceptance. It would be an impossibility that it would be vetoed.
Mr. Conyers. So there would be no way that the President could interfere with the Congress?
Mr. Flowers. The gentleman is correct.

11

Congress’s unilateral power under the NEA to terminate national emergency declarations

12 ended in 1983, when the Supreme Court in INS v. Chadha ruled that the president must have

13 power to approve or veto congressional acts, such as a terminating joint resolution under the NEA.

14 See 462 U.S. 919 (1983). Two years later, Congress amended the NEA to reflect that the joint

15 resolution must be “enacted into law” to terminate an emergency, thereby rendering the NEA

16 Chadha-compliant. See Pub. L. No. 99-93, § 801(1)(A), 99 Stat. 405, 448 (1985).

17

By some estimates, there are 123 statutory powers available to a president who declares a

18 national emergency. See A Guide to Emergency Powers and Their Use, Brennan Ctr. for Justice

19 (2019), www.brennancenter.org/sites/default/files/legislation/Emergency%20Powers_Printv2.pdf.

20 And in the more than forty years since Congress enacted the NEA, presidents have declared

21 almost sixty national emergencies. See Declared National Emergencies Under the National

22 Emergencies Act, 1978-2018, Brennan Ctr. for Justice (2019),

23 www.brennancenter.org/sites/default/files/analysis/NEA%20Declarations.pdf.

24

Until now, Congress had never invoked its emergency termination powers.

25

B. Section 284

26

Under Section 284, “[t]he Secretary of Defense may provide support for the counterdrug

27 activities . . . of any other department or agency of the Federal Government” if “such support is

28 requested . . . by the official who has responsibility for [such] counterdrug activities.” 10 U.S.C. 14

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 15 of 56

United States District Court Northern District of California

1 § 284(a), (a)(1)(A). Section 284 defines permissible “[t]ypes of support” under the statute,

2 including support for “[c]onstruction of roads and fences and installation of lighting to block drug

3 smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7). The

4 statute also mandates congressional notification before the Secretary of Defense provides

5 certain—but not all—types of support. Id. § 284(h). For one, Section 284 requires the Secretary

6 of Defense to submit to the appropriate congressional committee “a description of any small scale

7 construction project for which support is provided.” Id. § 284(h)(1)(B). Section 284 defines

8 “small scale construction” as “construction at a cost not to exceed $750,000 for any project.” Id.

9 § 284(i)(3).

10

Congress first provided DoD with authority to support such counterdrug activities in 1991,

11 in what is commonly referred to as “Section 1004.” See National Defense Authorization Act for

12 Fiscal Year 1991, Pub. L. No. 101-510, § 1004, 104 Stat. 1485, 1629–30 (1990). The initial

13 iteration of Section 1004 made available $50 million in funds for fiscal year 1991 alone, and

14 contained no congressional notification requirement or per-project cap on the provision of support.

15 Id. § 1004(g), 104 Stat. at 1630. Congress subsequently renewed Section 1004 on a regular basis.9

16 Congress ultimately codified Section 1004 at 10 U.S.C. § 284 in 2016. See National Defense

17 Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1011(a)(1), 130 Stat. 2000, 2381

18 (2016), renumbered § 284 by id. § 1241(a)(2), 130 Stat. at 2497.

19

20 9 Congress extended the provision of funds under Section 1004 on eight occasions, the last of

21

which provided funds through fiscal year 2017. See National Defense Authorization Act for Fiscal Years 1992 and 1993, Pub. L. No. 102-190, § 1088(a), 105 Stat. 1290, 1484 (1991)

22

(extending funding through fiscal year 1993); National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 1121, 107 Stat. 1547, 1753–54 (1993) (extending funding through

23

fiscal year 1995); National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 1011, 108 Stat. 2663, 2836–37 (1994) (extending funding through fiscal year 1999); Strom

24

Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. No. 105-261, § 1021, 112 Stat. 1920, 2120 (1998) (extending funding through fiscal year 2002); National

25

Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 1021, 115 Stat. 1012, 1212–15 (2001) (extending funding through fiscal year 2006); John Warner National Defense

26

Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, § 1021, 120 Stat. 2083, 2382 (2006) (extending funding through fiscal year 2011); National Defense Authorization Act for Fiscal Year

27

2012, Pub. L. No. 112-81, § 1005, 125 Stat. 1298, 1556–57 (2011) (extending funding through fiscal year 2014); Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act

28

for Fiscal Year 2015, Pub. L. No. 113-291, § 1012, 128 Stat. 3292, 3483–84 (2014) (extending funding through fiscal year 2017).

15

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 16 of 56

United States District Court Northern District of California

1

In fiscal year 2019, Congress appropriated $881 million in funds to DoD “[f]or drug

2 interdiction and counter-drug activities,” $517 million of which was “for counter-narcotics

3 support.” See Department of Defense and Labor, Health and Human Services, and Education

4 Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. VI, 132 Stat. 2981, 2997 (2018). All

5 funds DoD now purports to make available for support to DHS under Section 284 come from the

6 counter-narcotics support line of appropriation, out of what is known as the “drug interdiction

7 fund.” Rapuano Decl. ¶ 5, Ex. D. But when Secretary Shanahan first authorized support to DHS

8 under Section 284 on March 25, 2019, the counter-narcotics support line only contained

9 $238,306,000 in unobligated funds. See Dkt. No. 131 at 4 (citing Rapuano Decl. ¶ 5, Ex. D, at 2).

10 Therefore, although DoD seeks to make available $2.5 billion in support to DHS “under Section

11 284,” Defendants have not used—and do not intend to use in the near future—any of the counter-

12 narcotics support funds appropriated by Congress in fiscal year 2019 for border barrier

13 construction. Id. (noting that all $2.5 billion in border barrier construction support to DHS under

14 Section 284 is attributable to Section 8005 and 9002 reprogramming). In other words, every

15 dollar of Section 284 support to DHS and its enforcement agency, CBP, is attributable to

16 reprogramming mechanisms.

17

DoD’s provision of support under Section 284 does not require a national emergency

18 declaration.

19

C. Section 8005

20

“An amount available under law may be withdrawn from one appropriation account and

21 credited to another or to a working fund only when authorized by law.” 31 U.S.C. § 1532.

22 Section 8005 of the fiscal year 2019 Department of Defense Appropriations Act authorizes the

23 Secretary of Defense to transfer up to $4 billion “of working capital funds of the Department of

24 Defense or funds made available in this Act to the Department of Defense for military functions

25 (except military construction).” § 8005, 132 Stat. at 2999. The Secretary must first determine that

26 “such action is necessary in the national interest.” Id. Section 8005 further provides that such

27 authority to transfer may only be used (1) for higher priority items than those for which originally

28 appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item 16

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 17 of 56

United States District Court Northern District of California

1 for which funds are requested has been denied by the Congress.10 Id.

2

DoD’s Section 8005 transfer authority has existed in largely the same form since at least

3 fiscal year 1974. See Department of Defense Appropriation Act, 1974, Pub. L. No. 93-238, § 735,

4 87 Stat. 1026, 1044 (1974). That year, Congress added the “denied by Congress” provision “to

5 tighten congressional control of the reprogramming process,” and in response to incidents where

6 “[DoD] [had] requested that funds which have been specifically deleted in the legislative process

7 be restored through the reprogramming process.” H.R. Rep. No. 93-662, at 16 (1973). The House

8 Committee on Appropriations “believ[ed] that to concur in such actions would place committees

9 in the position of undoing the work of the Congress,” and that “henceforth no such requests will

10 be entertained.” Id.

11

On February 25, 2019, DHS submitted a request to DoD for assistance blocking drug-

12 smuggling corridors under Section 284. See Rapuano Decl. ¶ 3; States RJN Ex. 33. And on

13 March 25, 2019, DoD invoked Section 8005 to transfer $1 billion from funds Congress previously

14 appropriated for military personnel costs to the drug interdiction fund, which DoD then intends to

15 use to provide DHS’s requested “assistance” by constructing border barriers using its Section 284

16 authority. See Rapuano Decl. ¶ 5, Ex. D. Despite the recent dispute between the President and

17 Congress over funding for border barrier construction, and although the President had directed

18 DoD nearly a year prior to support DHS “in securing the southern border and taking other

19 necessary actions,” including the provision of “military personnel,” Federal Defendants purported

20 to invoke Section 8005 “based on unforeseen military requirements.” Id.; see also States RJN Ex.

21 27 (April 4, 2018 presidential memorandum). On May 9, 2019, Defendants invoked Section 8005

22 and a related reprogramming provision to authorize the transfer of an additional $1.5 billion in

23 funding into the drug interdiction fund, which then is slated to be used under Section 284 for

24 border barrier construction. See Rapuano Second Decl. ¶¶ 6–7, Ex. C.

25

The reprogramming of funds under Section 8005 does not require a national emergency

26 declaration.

27

28 10 10 U.S.C. § 2214(b) contains identical transfer authority. 17

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 18 of 56

United States District Court Northern District of California

1

D. Section 2808

2

Under Section 2808, the Secretary of Defense “may undertake military construction

3 projects, and may authorize the Secretaries of the military departments to undertake military

4 construction projects, not otherwise authorized by law.” 10 U.S.C. § 2808(a). Section 2808

5 requires that the President first declare a national emergency under the NEA “that requires use of

6 the armed forces.” Id. And the Secretary of Defense must use the funds for “military construction

7 projects . . . that are necessary to support such use of the armed forces.” Id.

8

Congress defined the term “military construction” as it is used in Section 2808 to

9 “include[] any construction, development, conversion, or extension of any kind carried out with

10 respect to a military installation, whether to satisfy temporary or permanent requirements, or any

11 acquisition of land or construction of a defense access road (as described in section 210 of title

12 23).” 10 U.S.C. § 2801(a). And Congress defined the term “military installation” to “mean[] a

13 base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a

14 military department or, in the case of an activity in a foreign country, under the operational control

15 of the Secretary of a military department or the Secretary of Defense, without regard to the

16 duration of operational control.” Id. § 2801(c)(4).

17

Presidents have twice invoked Section 2808’s military construction authority. In 1990,

18 President George H.W. Bush authorized emergency construction authority “to deal with the threat

19 to the national security and foreign policy of the United States caused by the invasion of Kuwait

20 by Iraq.” Exec. Order No. 12,734, 55 Fed. Reg, 48,099 (Nov. 14, 1990). President George W.

21 Bush later authorized emergency construction authority in the aftermath of the September 11,

22 2001 terrorist attacks. Exec. Order. No. 13,235, 66 Fed. Reg. 58,343 (Nov. 16, 2001). To date,

23 DoD has only once used its Section 2808 military construction authority domestically, when it

24 authorized $35 million in funds to secure weapons of mass destruction in five states. See Michael

25 J. Vassalotti, Brendan W. McGarry, Military Construction Funding in the Event of a National

26 Emergency, Cong. Research Serv. 2 & tbl. 1 (January 11, 2019).

27

According to Defendants, the Acting Secretary of Defense “has not yet decided to

28 undertake or authorize any barrier construction projects under section 2808.” Rapuano Decl. ¶ 14. 18

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 19 of 56

United States District Court Northern District of California

1 DoD undertook an internal review process, to identify “existing military construction projects of

2 sufficient value to provide up to $3.6 billion of funding.” Id. ¶ 15. The review process identified

3 such funding for border barrier construction, but the Acting Secretary nevertheless “has taken no

4 action on this information and has not yet decided to undertake or authorize any barrier

5 construction projects under section 2808.” See Dkt. No. 131-2 (“Rapuano Third Decl.”) ¶ 6.

6 Defendants have represented that they “will inform the Court” once a decision is made to use

7 Section 2808 to fund border barrier construction. See Dkt. No. 131 at 3.

8

E. Treasury Forfeiture Fund (Section 9705)

9

Through 31 U.S.C. § 9705, Congress established in the Treasury of the United States a

10 separate fund known as the “Department of the Treasury Forfeiture Fund.” 31 U.S.C. § 9705(a).

11 Funds are generally available to the Secretary of the Treasury “with respect to seizures and

12 forfeitures made pursuant to [applicable] law,” and for certain “law enforcement purposes.” Id.

13 State and local law enforcement agencies that participate in the seizure or forfeiture of property

14 may receive “[e]quitable sharing payments.” Id. § 9705(a)(1)(G). Section 9705(a)(1)(G) details

15 three statutory avenues for the provision of such equitable sharing payments: “Equitable sharing

16 payments made to other Federal agencies, State and local law enforcement agencies, and foreign

17 countries pursuant to section 616(c) of the Tariff Act of 1930 (19 U.S.C. 1616a(c)), section 981 of

18 title 18, or subsection (h) of this section, and all costs related thereto.” Equitable sharing

19 payments are statutorily capped, however, by the value of seized property. 31 U.S.C.

20 § 9705(b)(2). After the TFF has accounted for not only the current fiscal year’s mandatory

21 expenses—which include equitable sharing payments—but also set aside adequate funds for the

22 following fiscal year’s mandatory expenses, unobligated balances are available to the Secretary of

23 the Treasury, to be used “in connection with the law enforcement activities of any Federal

24 agency.” 31 U.S.C. § 9705(g)(4)(B). This is commonly referred to as “Strategic Support.” See

25 Case No. 4:19-cv-00872-HSG, ECF No. 89-9 (“Farley Decl.”) ¶ 11.

26

In late December 201811—during the government shutdown and just before the

27

28

11 The exact date of the request is unclear due to Defendants’ inconsistent representations. Compare Flossman Second Decl. ¶ 9 (indicating the request was made on December 26, 2018),

19

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 20 of 56

United States District Court Northern District of California

1 Administration sought $5.7 billion from Congress to fund border barrier construction—DHS

2 requested $681 million in Strategic Support funding “for border security.” Id. ¶ 24; see also States

3 RJN Ex. 25 (January 6, 2019 request for $5.7 billion in funding for border barrier construction).

4 The Treasury ultimately determined that it could make available to CBP, DHS’s enforcement

5 agency, up to $601 million from the TFF, in two tranches. Farley Decl. ¶¶ 24–25; Opp. at 9. The

6 first tranche—$242 million—was made available for obligation on March 14, 2019. See Opp. at

7 9. Save for a small portion “for program support on the TFF funded projects,” CBP intends to

8 obligate the first tranche “on an Interagency Agreement (IAA) with the U.S. Army Corps of

9 Engineers . . . by June 2019.” Dkt. No. 131-1 (“Flossman Third Decl.”) ¶ 4. Defendants represent

10 that “CBP intends to obligate all available TFF funds before the end of Fiscal Year 2019 or, if not,

11 before the end of the 2019 calendar year.” Flossman Second Decl. ¶ 11. The second tranche—

12 $359 million—“is expected to be made available for obligation at a later date upon Treasury’s

13 receipt of additional anticipated forfeitures.” See Opp. at 9. CBP intends to use funds from the

14 TFF “exclusively for projects in the Rio Grande Valley Sector,” in Texas. See Flossman Third

15 Decl. ¶ 5.

16

The Secretary of Treasury’s use of funds in the TFF for Strategic Support does not require

17 a national emergency declaration.

18

F. National Environmental Policy Act

19

NEPA establishes a “national policy which will encourage productive and enjoyable

20 harmony between man and his environment[,] to promote efforts which will prevent or eliminate

21 damage to the environment and biosphere and stimulate the health and welfare of man.” 42

22 U.S.C. § 4321. To this end, NEPA compels federal agencies to assess the environmental impact

23 of agency actions that “significantly affect[ ] the quality of the human environment.” Id.

24 § 4332(C). NEPA

25

serves two fundamental objectives. First, it “ensures that the agency,

in reaching its decision, will have available, and will carefully

26

consider, detailed information concerning significant environmental

impacts.” And, second, it requires “that the relevant information will 27

28 with Farley Decl. ¶ 24 (indicating the request was made on December 29, 2018). 20

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 21 of 56

United States District Court Northern District of California

be made available to the larger audience that may also play a role in

1

both the decisionmaking process and the implementation of that

decision.” 2

3 WildEarth Guardians v. Provencio, No. 17-17373, 2019 WL 1983455, at *7 (9th Cir. May 6,

4 2019) (quoting WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 924 (9th Cir.

5 2015)). NEPA does not establish substantive environmental standards; rather, it sets “action-

6 forcing” procedures that compel agencies to take a “hard look” at environmental consequences.

7 See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348–50 (1989). “NEPA’s

8 purpose is to ensure that ‘the agency will not act on incomplete information, only to regret its

9 decision after it is too late to correct.’” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557

10 (9th Cir. 2000) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989)). And the

11 Ninth Circuit commands that courts “strictly interpret” NEPA’s procedural requirements “to the

12 fullest extent possible,” as consistent with NEPA’s policies. Churchill Cty. v. Norton, 276 F.3d

13 1060, 1072 (9th Cir. 2001) (quoting Lathan v. Brinegar, 506 F.2d 677, 687 (9th Cir. 1974) (en

14 banc)). “[G]rudging, pro forma compliance will not do.” Id. (quoting Lathan, 506 F.2d at 693).

15

Where an agency’s project “might significantly affect environmental quality,” NEPA

16 compels preparation of what is known as an Environmental Impact Statement (“EIS”). Provencio,

17 2019 WL 1983455, at *7 (emphasis added). To prevail on a claim that an agency violated its duty

18 to prepare an EIS, a plaintiff need only raise “substantial questions whether a project may have a

19 significant [environmental] effect.” Id. (quoting Blue Mountains Biodiversity Project v.

20 Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)). An action’s “significance” depends on “both

21 context and intensity.” 40 C.F.R. § 1508.27; see also id. § 1508.27(b) (setting forth ten factors to

22 “consider[] in evaluating intensity”). Even where a project does not require an EIS, agencies

23 generally must prepare an Environmental Assessment (“EA”) which, in part, serves to “[b]riefly

24 provide sufficient evidence and analysis for determining whether to prepare an environmental

25 impact statement or a finding of no significant impact.” See 40 C.F.R. § 1508.9(a)(1).

26

“[A]gency action taken without observance of the procedure required by law will be set

27 aside.” Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988).

28 // 21

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 22 of 56

United States District Court Northern District of California

1 III. LEGAL STANDARD

2

A preliminary injunction is a matter of equitable discretion and is “an extraordinary

3 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

4 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking preliminary

5 injunctive relief must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer

6 irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor,

7 and that an injunction is in the public interest.” Id. at 20. Alternatively, an injunction may issue

8 where “the likelihood of success is such that serious questions going to the merits were raised and

9 the balance of hardships tips sharply in [the plaintiff’s] favor,” provided that the plaintiff can also

10 demonstrate the other two Winter factors. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

11 1131–32 (9th Cir. 2011) (citation and internal quotation marks omitted). Under either standard,

12 Plaintiffs bear the burden of making a clear showing that they are entitled to this extraordinary

13 remedy. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). The most important

14 Winter factor is likelihood of success on the merits. See Disney Enters., Inc. v. VidAngel, Inc., 869

15 F.3d 848, 856 (9th Cir. 2017).

16 IV. ANALYSIS

17

In the pending motion, Plaintiffs seek to enjoin Defendants from using certain diverted

18 federal funds and resources for border barrier construction. Specifically, Plaintiffs move to enjoin

19 Defendants from (1) invoking Section 8005’s reprogramming authority to channel funds into

20 DoD’s drug interdiction fund, (2) invoking Section 284 to divert monies from DoD’s drug

21 interdiction fund for border barrier construction on the southern border of Arizona and New

22 Mexico, (3) invoking Section 2808 to divert monies from appropriated DoD military construction

23 projects for border barrier construction,12 and (4) taking any further action related to border barrier

24 construction until Defendants comply with NEPA.

25

Defendants oppose each basis for injunctive relief. Defendants further contend that the

26 Plaintiffs lack standing to bring their Sections 8005 and 2808 claims. The Court addresses these

27

28 12 Only the Citizen Group Plaintiffs challenge the diversion of funds under Section 2808. 22

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 23 of 56

United States District Court Northern District of California

1 threshold issues first before turning to Plaintiffs’ individual bases for injunctive relief.

2

A. Article III Standing

3

A plaintiff seeking relief in federal court bears the burden of establishing “the irreducible

4 constitutional minimum” of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)

5 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). First, the plaintiff must have

6 “suffered an injury in fact.” Id. This requires “an invasion of a legally protected interest” that is

7 concrete, particularized, and actual or imminent, rather than conjectural or hypothetical. Lujan,

8 504 U.S. at 560 (internal quotation marks omitted). Second, the plaintiff’s injury must be “fairly

9 traceable to the challenged conduct of the defendant.” Spokeo, 136 S. Ct. at 1547. Third, the

10 injury must be “likely to be redressed by a favorable judicial decision.” Id. (citing Lujan, 504 U.S.

11 at 560–61).

12

1. Plaintiffs Have Standing for Their 8005 Claim.

13

Defendants argue that Plaintiffs lack standing to challenge Defendants’ invocation of

14 Section 8005 to reprogram funds into the drug interdiction fund, so that Defendants can then

15 divert that money wholesale to border barrier construction using Section 284. See Opp. at 14.13

16 Defendants do not dispute that Plaintiffs have standing to challenge the use of funds from the drug

17 interdiction fund for border barrier construction under Section 284. Defendants nonetheless

18 reason that harm from construction using drug interdiction funds under Section 284 does not

19 establish standing to challenge Defendants’ use of Section 8005 to supply those funds. Id.

20 Defendants argue that standing requires that the plaintiff be the “object” of the challenged agency

21 action, but that the Section 8005 augmentation of the drug interdiction fund and the use of that

22 money for construction are two distinct agency actions. Id. (citing Lujan, 504 U.S. at 562).

23 According to Defendants, the “object” of the Section 8005 reprogramming was “simply mov[ing]

24 funds among DoD’s accounts.” Id. (citing Lujan, 504 U.S. at 562).

25

Defendants’ logic fails in all respects. As an initial matter, it is not credible to suggest that

26

27

13 Defendants also argue Plaintiffs lack standing because they fall outside Section 8005’s “zone of interests.” See Opp. at 18–19. Because the Court finds Defendants’ “zone of interests” challenge

28

derivative of Defendants’ misunderstanding of ultra vires review, the Court addresses those matters together, below. See infra Section IV.B.1.

23

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 24 of 56

United States District Court Northern District of California

1 the “object” of the Section 8005 reprogramming is anything but border barrier construction, even

2 if the reprogrammed funds make a pit stop in the drug interdiction fund. Since Defendants first

3 announced that they would reprogram funds using Section 8005, they have uniformly described

4 the object of that reprogramming as border barrier construction. See Rapuano Decl. ¶ 5 (providing

5 that “the Acting Secretary of Defense decided to use DoD’s general transfer authority under

6 section 8005 . . . to transfer funds between DoD appropriations to fund [border barrier

7 construction in Arizona and New Mexico]”); id. Ex. D, at 1 (notifying Congress that the

8 “reprogramming action” under Section 8005 is for “construction of additional physical barriers

9 and roads in the vicinity of the United States border”).

10

Nor does Lujan impose Defendants’ proffered strict “object” test. The Lujan Court

11 explained that “when the plaintiff is not himself the object of the government action or inaction he

12 challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.”

13 504 U.S. at 562 (internal quotation marks omitted). And the Supreme Court was concerned in

14 particular with “causation and redressability,” which are complicated inquiries when a plaintiff’s

15 standing “depends on the unfettered choices made by independent actors not before the courts and

16 whose exercise of broad and legitimate discretion the courts cannot presume either to control or to

17 predict.” Id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (Kennedy, J.)). As

18 concerns causation, the Ninth Circuit recently explained that Article III standing only demands a

19 showing that the plaintiff’s injury is “fairly traceable to the challenged action of the defendant, and

20 not the result of the independent action of some third party not before the court.” Mendia v.

21 Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167

22 (1997)). “Causation may be found even if there are multiple links in the chain connecting the

23 defendant’s unlawful conduct to the plaintiff’s injury, and there’s no requirement that the

24 defendant’s conduct comprise the last link in the chain. As we’ve said before, what matters is not

25 the length of the chain of causation, but rather the plausibility of the links that comprise the

26 chain.” Id. (internal quotation marks and citations omitted).

27

No complicated causation inquiry is necessary here, as there are no independent absent

28 actors. More important, if there were ever a case where standing exists even though the 24

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 25 of 56

United States District Court Northern District of California

1 challenged government action is nominally directed to some different “object,” this is it. Neither

2 the parties nor the Court harbor any illusions that the point of reprogramming funds under Section

3 8005 is to use those funds for border barrier construction. And under Ninth Circuit law, there is

4 no requirement that the challenged conduct be the last link in the causal chain. Rather, even if

5 there is an intervening link between the Section 8005 reprogramming and the border barrier

6 construction itself, any injury caused by the border barrier construction is nonetheless “fairly

7 traceable” to the Section 8005 reprogramming under the circumstances. See id. The Court thus

8 cannot accept the Government’s “two distinct actions” rationale as a basis for shielding

9 Defendants’ actions from review.

10

2. Plaintiffs Have Standing for Their Section 2808 Claim.

11

Defendants argue that Plaintiffs lack standing to challenge Defendants’ diversion of funds

12 under Section 2808 “because the Acting Secretary of Defense has not yet decided to undertake or

13 authorize any barrier construction projects under [Section] 2808.” Opp. at 21. Defendants

14 describe the status of the Section 2808 diversion as follows:

15

The Acting Secretary of Defense has not yet decided to undertake or

authorize any barrier construction projects under section 2808. To

16

inform the Acting Secretary’s decision, on March 20, 2019, the

Secretary of Homeland Security provided a prioritized list of

17

proposed border-barrier-construction projects that DHS assesses

would improve the efficiency and effectiveness of the armed forces

18

supporting OHS in securing the southern border. On April 11, 2019,

as a follow-up to the Chairman’s preliminary assessment of February

19

10, 2019, the Acting Secretary instructed the Chairman of the Joint

Chiefs of Staff to provide, by May 10, 2019, a detailed assessment of

20

whether and how specific military construction projects could support

the use of the armed forces in addressing the national emergency at

21

the southern border.

22

Also on April 11, 2019, the Acting Secretary instructed the DoD

Comptroller, in consultation with the Secretaries of the military

23

departments, the Chairman of the Joint Chiefs of Staff, the Under

Secretary of Defense for Acquisition and Sustainment, the Under

24

Secretary of Defense for Policy, and the heads of any other relevant

DoD components to identify, by May 10, 2019, existing military

25

construction projects of sufficient value to provide up to $3.6 billion

of funding for his consideration. 26

27 Rapuano Decl. ¶¶ 14–15. According to Defendants, absent some express decision to authorize or

28 undertake a particular project, Plaintiffs’ injury is speculative: “It is entirely possible that no 25

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 26 of 56

United States District Court Northern District of California

1 barrier projects will be constructed pursuant to [Section] 2808, and that, if they are, they will be

2 [sic] built in any location where Plaintiffs would have a claim to a cognizable injury.” Opp. at 21.

3

Defendants ask too much of Plaintiffs. A plaintiff need not present undisputable proof of a

4 future harm. The injury-in-fact requirement instead permits standing when a risk of future injury

5 is “at least imminent.” See Lujan, 504 U.S. at 564 n.2. And while courts must ensure that the

6 “actual or imminent” measure of harm is not “stretched beyond its purpose, which is to ensure that

7 the alleged injury is not too speculative for Article III purposes,” see id., the Ninth Circuit has

8 consistently held that a “‘credible threat’ that a probabilistic harm will materialize” is enough, see

9 Nat. Res. Def. Council v. EPA, 735 F.3d 873, 878 (9th Cir. 2013) (quoting Covington v. Jefferson

10 Cty., 358 F.3d 626, 641 (9th Cir. 2004)).

11

At this stage, Plaintiffs have carried their burden to demonstrate that there is a “credible

12 threat” that Defendants will divert funds under Section 2808 for border barrier construction in a

13 location where Plaintiffs would have a claim to a cognizable injury. As detailed in Defendants’

14 supporting declaration, a decision on the use of Section 2808 to authorize border barrier

15 construction is forthcoming, as the DoD has now received necessary information which it intends

16 to use to make decisions. See Rapuano Third Decl. ¶ 6. Further, the Court cannot ignore that the

17 President invoked Section 2808 to enable the diversion of funds for border barrier construction.

18 See Citizen Groups RJN Ex. D. The White House in fact provided in February 2019 that funds

19 under Section 2808 “will be available.” Id. Ex. G. There is thus no speculation necessary for the

20 Court to find that Defendants will continue with their current course of conduct and exercise their

21 authority under Section 2808 in the manner directed by the President. See Cent. Delta Water

22 Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002) (“Although [Nelsen v. King County,

23 895 F.2d 1248, 1251–52 (9th Cir. 1990)] certainly requires us to consider all the circumstances

24 related to a threatened future harm, including whether the threatened harm may result from a chain

25 of contingencies, the possibility that defendants may change their course of conduct is not the type

26 of contingency to which we referred in Nelsen.”).

27

Finally, as to Defendants’ claim that they might use Section 2808 funds in a location where

28 Plaintiffs would not have a claim to a cognizable injury, it is highly unlikely that this would be the 26

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 27 of 56

United States District Court Northern District of California

1 case, as Plaintiffs have demonstrated that their members span the entire U.S.-Mexico border. See,

2 e.g., Dkt. No. 32 ¶ 3 (“SBCC’s membership spans the borderlands from California to Texas.”).

3

B. Plaintiffs Have Shown They Are Entitled to a Preliminary Injunction.

4

Applying the Winter factors, the Court finds Plaintiffs are entitled to a preliminary

5 injunction as to Defendants’ use of Section 8005’s reprogramming authority to channel funds into

6 the drug interdiction fund so that those funds may be ultimately used for border barrier

7 construction in El Paso Sector Project 1 and Yuma Sector Project 1.

8

1. Likelihood of Success on the Merits

9

The crux of Plaintiffs’ case is that Defendants’ methods for funding border barrier

10 construction are unlawful. And Plaintiffs package that core challenge in several ways. For

11 present purposes, Plaintiffs contend that Defendants’ actions (1) violate Congress’s most-recent

12 appropriations legislation, (2) are unconstitutional, (3) exceed Defendants’ statutory authority—in

13 other words, are ultra vires—and (4) violate NEPA.

14

The Court begins with a discussion of the law governing the appropriation of federal funds.

15 Under the Appropriations Clause of the Constitution, “No Money shall be drawn from the

16 Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.

17 “The Clause’s words convey a ‘straightforward and explicit command’: No money ‘can be paid

18 out of the Treasury unless it has been appropriated by an act of Congress.’” U.S. Dep’t of Navy v.

19 FLRA, 665 F.3d 1339, 1346 (D.C. Cir. 2012) (quoting OPM v. Richmond, 496 U.S. 414, 424

20 (1990)). “The Clause has a ‘fundamental and comprehensive purpose . . . to assure that public

21 funds will be spent according to the letter of the difficult judgments reached by Congress as to the

22 common good and not according to the individual favor of Government agents.’” United States v.

23 McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016) (quoting Richmond, 496 U.S. at 427–28). It

24 “protects Congress’s exclusive power over the federal purse,” and “prevents Executive Branch

25 officers from even inadvertently obligating the Government to pay money without statutory

26 authority.” FLRA, 665 F.3d at 1346–47 (internal quotation marks and citations omitted).

27

“Federal statutes reinforce Congress’s control over appropriated funds,” and under federal

28 law “appropriated funds may be applied only ‘to the objects for which the appropriations were 27

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 28 of 56

United States District Court Northern District of California

1 made.’” Id. at 1347 (quoting 31 U.S.C. § 1301(a)). Moreover, “[a]n amount available under law

2 may be withdrawn from one appropriation account and credited to another or to a working fund

3 only when authorized by law.” 31 U.S.C. § 1532. “[A]ll uses of appropriated funds must be

4 affirmatively approved by Congress,” and “the mere absence of a prohibition is not sufficient.”

5 FLRA, 665 F.3d at 1348. In summary, “Congress’s control over federal expenditures is

6 ‘absolute.’” Id. (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir.

7 1992)).

8

Rather than dispute these principles, Defendants contend that the challenged conduct

9 complies with them. See Opp. at 26 (“The Government is not relying on independent Article II

10 authority to undertake border construction; rather, the actions alleged are being undertaken

11 pursuant to express statutory authority.”). Accordingly, one of the key issues in dispute is whether

12 Congress in fact provided “express statutory authority” for Defendants’ challenged actions.

13

Turning to Plaintiffs’ claims, it is necessary as a preliminary matter to outline the measure

14 and lens of reviewability the Court applies in assessing such broad challenges to actions by

15 executive officers. As a first principle, the Court finds that it has authority to review each of

16 Plaintiffs’ challenges to executive action. “It is emphatically the province and duty of the judicial

17 department to say what the law is.” Marbury, 1 Cranch at 177. In determining what the law is,

18 the Court has a duty to determine whether executive officers invoking statutory authority exceed

19 their statutory power. See Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384

20 (2015). And even where executive officers act in conformance with statutory authority, the Court

21 has an independent duty to determine whether authority conferred by act of the legislature

22 nevertheless runs afoul of the Constitution. See Clinton v. City of New York, 524 U.S. 417, 448

23 (1998).

24

Once a case or controversy is properly before a court, in most instances that court may

25 grant injunctive relief against executive officers to enjoin both ultra vires acts—that is, acts

26 exceeding the officers’ purported statutory authority—and unconstitutional acts. The Supreme

27 Court recently reaffirmed this core equitable power:

28

It is true enough that we have long held that federal courts may in

28

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 29 of 56

United States District Court Northern District of California

some circumstances grant injunctive relief against state officers who

1

are violating, or planning to violate, federal law. But that has been

true not only with respect to violations of federal law by state

2

officials, but also with respect to violations of federal law by federal

officials. . . . What our cases demonstrate is that, in a proper case,

3

relief may be given in a court of equity . . . to prevent an injurious act

by a public officer. 4

The ability to sue to enjoin unconstitutional actions by state and

5

federal officers is the creation of courts of equity, and reflects a long

history of judicial review of illegal executive action, tracing back to

6

England.

7 Armstrong, 135 S. Ct. at 1384 (internal quotation marks and citations omitted).

8

Misunderstanding the presumptive availability of equitable relief to enforce federal law,

9 Defendants contend that Plaintiffs fail to identify a statutory private right of action, that Plaintiffs

10 must challenge Defendants’ conduct through the framework of the APA, and that to the extent

11 ultra vires review is available, “Plaintiffs [must] show that the challenged action ‘contravene[s]

12 clear and mandatory statutory language.’” See Opp. at 12–13. But as Plaintiffs detail at length in

13 their reply brief, ultra vires review exists outside of the APA framework, and Defendants’

14 heightened standard for ultra vires review only applies where Congress has foreclosed judicial

15 review, which is not the case here. See Reply at 2–5; see also Dkt. No. 107 (Brief of Amici Curiae 16 Federal Courts Scholars).14

17

Due to their mistaken framing of the scope of ultra vires review, Defendants also

18 incorrectly posit that Plaintiffs must establish that they fall within the “zone of interests” of a

19 particular statute to challenge actions taken by the government under that statute. See Opp. at 14–

20 15. The “zone of interests” test, however, only relates to statutorily-created causes of action. See

21 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014) (explaining that

22 “[t]he modern ‘zone of interests’ formulation . . . . applies to all statutorily created causes of

23 action”). The test has no application in an ultra vires challenge, which operates outside of the

24

25 14 Congress may displace federal courts’ equitable power to enjoin unlawful executive action, but

26

a precluding statute must at least display an “intent to foreclose” injunctive relief. Armstrong, 135 S. Ct. at 1385. Courts have found such implied foreclosure where (1) the statute provides an

27

express administrative remedy, and (2) the statute is otherwise judicially unadministrable in nature. Id. at 1385–86. No party contends that the statutes at issue in this case either expressly

28

foreclose equitable relief or provide an express administrative remedy, which might warrant a finding of implied foreclosure of equitable relief.

29

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 30 of 56

United States District Court Northern District of California

1 APA framework. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987)

2 (“Appellants need not, however, show that their interests fall within the zones of interests of the

3 constitutional and statutory powers invoked by the President in order to establish their standing to

4 challenge the interdiction program as ultra vires.”); see also 33 Charles Alan Wright et al., Federal

5 Practice and Procedure § 8302 (2d ed. 2019) (explaining that the “zone of interests” test is to

6 determine whether a plaintiff “seeks to protect interests that ‘arguably’ fall within the ‘zone of

7 interests’ protected by that provision”). In other words, where a plaintiff seeks to vindicate a right

8 protected by a statutory provision, the plaintiff must demonstrate that it arguably falls within the

9 zone of interests Congress meant to protect by enacting that provision. But where a plaintiff seeks

10 equitable relief against a defendant for exceeding its statutory authority, the zone-of-interests test

11 is inapposite. Any other interpretation would lead to absurd results. The very nature of an ultra

12 vires action posits that an executive officer has gone beyond what the statute permits, and thus

13 beyond what Congress contemplated. It would not make sense to demand that Plaintiffs—who

14 otherwise have standing—establish that Congress contemplated that the statutes allegedly violated

15 would protect Plaintiffs’ interests. It is no surprise, then, that the Supreme Court’s recent

16 discussion of ultra vires review in Armstrong did not once reference this test.

17

In reviewing the lawfulness of Defendants’ conduct, the Court thus begins each inquiry by

18 determining whether the disputed action exceeds statutory authority. For unless an animating

19 statute sanctions a challenged action, a court need not reach the second-level question of whether

20 it would be unconstitutional for Congress to sanction such conduct. See Nw. Austin Mun. Util.

21 Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (explaining the “well-established principle

22 governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide

23 a constitutional question if there is some other ground upon which to dispose of the case”)

24 (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)). This is not to say,

25 however, that the yardstick of statutory authority overlooks constitutional concerns entirely. “The

26 so-called canon of constitutional avoidance . . . counsel[s] that ambiguous statutory language be

27 construed to avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S.

28 502, 516 (2009). Nonetheless, a court presented with both ultra vires and constitutional claims 30

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 31 of 56

United States District Court Northern District of California

1 should begin by determining whether the statutory authority supports the action challenged, and

2 only reach the constitutional analysis if necessary.

3

a. Sections 284 and 8005

4

At the President’s direction, Defendants intend to divert $2.5 billion, $1 billion of which is

5 the subject of the pending motion, to the DoD’s drug interdiction fund for border barrier

6 construction.15 To do so, Defendants rely on Section 284(b)(7), which authorizes the Secretary of

7 Defense to support other federal agencies for the “[c]onstruction of roads and fences and

8 installation of lighting to block drug smuggling corridors across international boundaries of the

9 United States.” See The Funds Available to Address the National Emergency at Our Border, The

10 White House, https://www.whitehouse.gov/briefings-statements/funds-available-address-national-

11 emergency-border (Feb. 26, 2019). To satisfy the President’s directive, Defendants intend to rely

12 on their reprogramming authority under Section 8005, and plan to “augment” the drug interdiction

13 fund with the entire $2.5 billion in funds that DoD will then use for the construction. Id.

14

Plaintiffs challenge both the augmentation of the drug interdiction fund through Section

15 8005 and the use of funds from the drug interdiction fund under Section 284. Turning first to the

16 augmentation of funds, Section 8005 authorizes the reprogramming of up to $4 billion “of

17 working capital funds of the Department of Defense or funds made available in this Act to the

18 Department of Defense.” The transfer must be (1) either (a) DoD working capital funds or (b)

19 “funds made available in this Act to the [DoD] for military functions (except military

20 construction),” (2) first determined by the Secretary of Defense as necessary in the national

21 interest, (3) for higher priority items than those for which originally appropriated, (4) based on

22 unforeseen (5) military requirements, and (6) in no case where the item for which funds are

23

24

15 The Court here only considers the lawfulness of Defendants’ March 25, 2019 invocation of Section 8005 to reprogram $1 billion, given the parties’ agreement that this order need not address

25

Defendants’ recently announced intent to use Sections 8005, 9002, and 284 to fund border barrier construction in the El Centro Sector and Tucson Sector Projects. The parties reached this

26

agreement after counsel for Defendants represented at the hearing on this motion that “no construction will start [with those funds] until at least 45 days from” the May 17, 2019 hearing

27

date. See Dkt. No. 138 at 55:16–17. The parties confirmed that they would agree to a schedule to supplement the record, to permit the Court to review in a timely manner the lawfulness of the new

28

reprogramming, under the framework set forth in this order. Id. at 59:14–60:2. The parties have since agreed on a schedule. See Dkt. No. 142.

31

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 32 of 56

United States District Court Northern District of California

1 requested has been denied by Congress. Plaintiffs argue that Defendants’ actions fail the last three

2 requirements. The Court first considers whether the reprogramming Defendants propose here is

3 for an item for which funds were requested but denied by Congress.

4

i. Plaintiffs are Likely to Show That the Item for Which

Funds Are Requested Has Been Denied by Congress. 5

6

Plaintiffs argue that Defendants are transferring funds for a purpose previously denied by

7 Congress. Mot. at 16. Defendants dispute, however, whether Congress’s affirmative

8 appropriation of funds in the CAA to DHS constitutes a “denial” of appropriations to DoD’s

9 “counter-drug activities in furtherance of DoD’s mission under [Section] 284.” Opp. at 16. In

10 their view, “the item” for which funds are requested, for present purposes, is counterdrug activities

11 under Section 284. Id. And Defendants maintain that “nothing in the DHS appropriations statute

12 indicates that Congress ‘denied’ a request to fund DoD’s statutorily authorized counter-drug

13 activities, which expressly include fence construction.” Id. In other words, even though DoD’s

14 counterdrug authority under Section 284 is merely a pass-through vessel for Defendants to funnel

15 money to construct a border barrier that will be turned over to DHS, Citizen Groups RJN Ex. I, at

16 10, Defendants argue that the Court should only consider whether Congress denied funding to

17 DoD.

18

Plaintiffs have shown a likelihood of success as to their argument that Congress previously

19 denied “the item for which funds are requested,” precluding the proposed transfer. On January 6,

20 2019, the President asked Congress for “$5.7 billion for construction of a steel barrier for the

21 Southwest border,” explaining that the request “would fund construction of a total of

22 approximately 234 miles of new physical barrier.” Citizen Groups RJN Ex. A, at 1. The request

23 noted that “[a]ppropriations bills for fiscal year (FY) 2019 that have already been considered by

24 the current and previous Congresses are inadequate to fully address these critical issues,” to

25 include the need for barrier construction funds. Id. The President’s request did not specify the

26 mechanics of how the $5.7 billion sought would be used for the proposed steel barrier

27 construction. Id. Nonetheless, in the CAA passed by Congress and signed by the President,

28 Congress appropriated only $1.375 billion for the construction of pedestrian fencing, of a specified 32

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 33 of 56

United States District Court Northern District of California

1 type, in a specified sector, and appropriated no other funds for barrier construction. The Court

2 agrees with Plaintiffs that they are likely to show that the proposed transfer is for an item for

3 which Congress denied funding, and that it thus runs afoul of the plain language of Section 8005

4 and 10 U.S.C. § 2214(b) (“Section 2214”).16

5

As Defendants acknowledge, in interpreting a statute, the Court applies the principle that

6 “the plain language of [the statute] should be enforced according to its terms, in light of its

7 context.” ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015). In its

8 amicus brief, the House recounts legislative history that provides critical context for the Court’s

9 interpretative task. The House explains that the “denied by the Congress” restriction was imposed

10 on DoD’s transfer authority in 1974 to “tighten congressional control of the reprogramming

11 process.” Dkt. No. 47 (“House Br.”) at 10 (citing H.R. Rep. No. 93-662, at 16 (1973)). The

12 House committee report on the appropriations bill from that year explained that “[n]ot frequently,

13 but on some occasions, the Department ha[d] requested that funds which have been specifically

14 deleted in the legislative process be restored through the reprogramming process,” and that “[t]he

15 Committee believe[d] that to concur in such actions would place committees in the position of

16 undoing the work of the Congress.” H.R. Rep. No. 93-662, at 16. Significantly, the Committee

17 stated that such a position would be “untenable.” Id. Consistent with this purpose, Congress has

18 described its intent that appropriations restrictions of this sort be “construed strictly” to “prevent

19 the funding for programs which have been considered by Congress and for which funding has

20 been denied.” See H.R. Rep. No. 99-106, at 9 (1985) (discussing analogous appropriations

21 restriction in Pub. L. No. 99-169, § 502(b), 99 Stat. 1005 (codified at 50 U.S.C. § 3094(b)).

22

The Court finds that the language and purpose of Section 8005 and Section 2214(b) likely

23 preclude Defendants’ attempt to transfer $1 billion from funds Congress previously appropriated

24 for military personnel costs to the drug interdiction fund for the construction of a border barrier.

25

26 16 See Fox News, Mick Mulvaney on chances of border deal, Democrats ramping up investigation

27

of Trump admin, YouTube (Feb. 10, 2019), https://www.youtube.com/watch?v=l_Z0xx_zS0M (statement by Acting White House Chief of Staff that “[w]e’ll take as much money as you can

28

give us, and then we’ll go off and find the money someplace else, legally, in order to secure that southern barrier. But this is going to get built, with or without Congress.”).

33

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 34 of 56

United States District Court Northern District of California

1 Defendants argue that “Congress never denied DoD funding to undertake the [Section] 284

2 projects at issue,” Opp. at 16, such that Section 8005 and Section 2214(b) are satisfied. But in the

3 Court’s view, that reading of those sections is likely wrong, when the reality is that Congress was

4 presented with—and declined to grant—a $5.7 billion request for border barrier construction.

5 Border barrier construction, expressly, is the item Defendants now seek to fund via the Section

6 8005 transfer, and Congress denied the requested funds for that item. See 10 U.S.C. § 2214(b)

7 (explaining that transfer authority “may not be used if the item to which the funds would be

8 transferred is an item for which Congress has denied funds”) (emphasis added). And Defendants

9 point to nothing in the language or legislative history of the statutes in support of their assertion

10 that only explicit congressional denial of funding for “[Section] 284 projects,” or even DoD

11 projects generally, would trigger Section 8005’s limitation. Opp. at 16. It thus would be

12 inconsistent with the purpose of these provisions, and would subvert “the difficult judgments

13 reached by Congress,” McIntosh, 833 F.3d at 1175, to allow Defendants to circumvent Congress’s

14 clear decision to deny the border barrier funding sought here when it appropriated a dramatically

15 lower amount in the CAA. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609

16 (1952) (Frankfurter, J., concurring) (“It is quite impossible . . . when Congress did specifically

17 address itself to a problem . . . to find secreted in the interstices of legislation the very grant of

18 power which Congress consciously withheld. To find authority so explicitly withheld is not

19 merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole

20 legislative process and the constitutional division of authority between President and Congress.”).

21

ii. Plaintiffs are Likely to Show That the Transfer is Not

Based on “Unforeseen Military Requirements.” 22

23

Plaintiffs next argue that any need for border barrier construction—to the extent there is a

24 need—was long “foreseen,” noting that the President supported his fiscal year 2019 budget

25 request for border barrier funding with a description that such a barrier “is critical to combating

26 the scourge of drug addiction that leads to thousands of unnecessary deaths.” Mot. at 16 (quoting

27 Citizen Groups RJN Ex. R, at 16).

28

In response, Defendants again seek to minimize the pass-through nature of DoD’s counter-

34

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 35 of 56

United States District Court Northern District of California

1 drug activities authority under Section 284. While not disputing that the President requested—and

2 was denied—more-comprehensive funds for border barrier construction, Defendants instead note

3 that “[t]he President’s 2019 budget request did not propose additional funding for DoD’s

4 counterdrug activities under [Section] 284.” Opp. at 16. Defendants then argue that because DHS

5 only formally requested Section 284 support in February 2019, the need for Section 284 support

6 only become foreseen in February 2019. Id. at 16–17.

7

Separate and apart from the Court’s analysis above regarding whether Congress previously

8 denied funding for the relevant item, Plaintiffs also have shown a likelihood of success as to their

9 argument that Defendants fail to meet the “unforeseen military requirement” condition for the

10 reprogramming of funds under Section 8005. As the House notes in its amicus brief, DoD has

11 used this authority in the past to transfer funds based on unanticipated circumstances (such as

12 hurricane and typhoon damage to military bases) justifying a departure from the scope of spending

13 previously authorized by Congress. House Br. at 10 (citing Office of the Under Secretary of

14 Defense (Comptroller), DoD Serial No. FY 04-37 PA, Reprogramming Action (Sept. 3, 2004)).

15 Here, however, Defendants claim that what was “unforeseen” was “[t]he need for DoD to exercise

16 its [Section] 284 authority to provide support for counter-drug activities,” which “did not arise

17 until February 2019, when DHS requested support from DoD to construct fencing in drug

18 trafficking corridors.” Opp. at 16.

19

Defendants’ argument that the need for the requested border barrier construction funding

20 was “unforeseen” cannot logically be squared with the Administration’s multiple requests for

21 funding for exactly that purpose dating back to at least early 2018. See Citizen Groups Ex. R

22 (February 2018 White House Budget Request describing “the Administration’s proposal for $18

23 billion to fund the border wall”); see also States RJN Exs. 14–20 (failed bills); id. Ex. 21

24 (December 11, 2018 transcript from a meeting with members of Congress, where the President

25 stated that “if we don’t get what we want [for border barrier construction funding], one way or the

26 other – whether it’s through you, through a military, through anything you want to call [sic] – I

27 will shut down the government”); Case No. 4:19-cv-00872-HSG, ECF No. 89-12, at 14 (testimony

28 of Defendant Shanahan before the House Armed Services Committee explaining that the 35

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 36 of 56

United States District Court Northern District of California

1 Administration discussed unilateral reprogramming “prior to the declaration of a national

2 emergency”). Further, even the purported need for DoD to provide DHS with support for border

3 security has similarly been long asserted. See States RJN Ex. 27 (April 4, 2018 presidential

4 memorandum directing the Secretary of Defense to support DHS “in securing the southern border

5 and taking other necessary actions” due to “[t]he crisis at our southern border”). Defendants’

6 suggestion that by not specifically seeking border barrier funding under Section 284 by name, the

7 Administration can later contend that as far as DoD is concerned, the need for such funding is

8 “unforeseen,” is not likely to withstand scrutiny.

9

Interpreting “unforeseen” to refer to the request for DoD assistance, as opposed to the

10 underlying “requirement” at issue, also is not reasonable. By Defendants’ logic, every request for

11 Section 284 support would be for an “unforeseen military requirement,” because only once the

12 request was made would the “need to exercise authority” under the statute be foreseen. There is

13 no logical reason to stretch the definition of “unforeseen military requirement” from requirements

14 that the government as a whole plainly cannot predict (like the need to repair hurricane damage) to

15 requirements that plainly were foreseen by the government as a whole (even if DoD did not realize

16 that it would be asked to pay for them until after Congress declined to appropriate funds requested

17 by another agency). Nothing presented by the Defendants suggests that its interpretation is what

18 Congress had in mind when it imposed the “unforeseen” limitation, especially where, as here,

19 multiple agencies are openly coordinating in an effort to build a project that Congress declined to

20 fund. The Court thus finds it likely that Plaintiffs will succeed on this claim.17

21

iii. Accepting Defendants’ Proposed Interpretation of

Section 8005’s Requirements Would Likely Raise Serious

22

Constitutional Questions.

23

The Court also finds it likely that Defendants’ reading of these provisions, if accepted,

24 would pose serious problems under the Constitution’s separation of powers principles. Statutes

25 must be interpreted to avoid a serious constitutional problem where another “construction of the

26

27 17 Because the Court has found that Plaintiffs are likely to succeed on their argument that the

28

reprogramming violates the two Section 8005 conditions discussed above, it need not reach at this stage their argument that the border barrier project is not a “military requirement” at all.

36

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 37 of 56

United States District Court Northern District of California

1 statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678,

2 689 (2001) (internal quotation marks and citations omitted). Constitutional avoidance is “thus a

3 means of giving effect to congressional intent,” as it is presumed that Congress did not intend to

4 create an alternative interpretation that would raise serious constitutional concerns. Clark v.

5 Martinez, 543 U.S. 371, 382 (2005). Courts thus “have read significant limitations into . . .

6 statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689 (citation

7 omitted).

8

As Plaintiffs point out, the upshot of Defendants’ argument is that the Acting Secretary of

9 Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284

10 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate

11 only $1.375 billion for that purpose; (2) Congress’s total fiscal year 2019 appropriation available

12 under Section 284 for “[c]onstruction of roads and fences and installation of lighting to block drug

13 smuggling corridors across international boundaries of the United States” was $517 million, much

14 of which already has been spent; and (3) Defendants have acknowledged that the Administration

15 considered reprogramming funds for border barrier construction even before the President signed

16 into law Congress’s $1.375 billion appropriation. See Department of Defense and Labor, Health

17 and Human Services, and Education Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit.

18 VI, 132 Stat. 2981, 2997 (2018) (appropriating $881 million in funds “[f]or drug interdiction and

19 counter-drug activities” in fiscal year 2019, $517 million of which is “for counter-narcotics

20 support”); Dkt. No. 131 at 4 (indicating that Defendants have not used—and do not intend to use

21 in the near future—any funds appropriated by Congress for counter-narcotics support for border

22 barrier construction); Case No. 4:19-cv-00872-HSG, ECF No. 89-12, at 14 (testimony of

23 Defendant Shanahan before the House Armed Services Committee explaining that the

24 Administration discussed unilateral reprogramming “prior to the declaration of a national

25 emergency”). Put differently, according to Defendants, Section 8005 authorizes the Acting

26 Secretary of Defense to essentially triple—or quintuple, when considering the recent additional

27 $1.5 billion reprogramming—the amount Congress allocated to this account for these purposes,

28 notwithstanding Congress’s recent and clear actions in passing the CAA, and the relevant 37

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 38 of 56

United States District Court Northern District of California

1 committees’ express disapproval of the proposed reprogramming. See States RJN Ex. 35 (“The

2 committee denies this request. The committee does not approve the proposed use of [DoD] funds

3 to construct additional physical barriers and roads or install lighting in the vicinity of the United

4 States border.”); id. Ex. 36 (“The Committee has received and reviewed the requested

5 reprogramming action . . . . The Committee denies the request.”). Moreover, Defendants’

6 decision not to refer specifically to Section 284 in their $5.7 billion funding request deprived 7 Congress of even the opportunity to reject or approve this funding item.18

8

The Court agrees with Plaintiffs that reading Section 8005 to permit this massive

9 redirection of funds under these circumstances likely would amount to an “unbounded

10 authorization for Defendants to rewrite the federal budget,” Reply at 14, and finds that

11 Defendants’ reading likely would violate the Constitution’s separation of powers principles.

12 Defendants contend that because Congress did not reject (and, indeed, never had the opportunity

13 to reject) a specific request for an appropriation to the Section 284 drug interdiction fund, DoD

14 can use Section 8005 to route anywhere up to the $4 billion cap set by that statute, to be spent for

15 the benefit of DHS via Section 284. But this reading of DoD’s authority under the statute would

16 render meaningless Congress’s constitutionally-mandated power to assess proposed spending,

17 then render its binding judgment as to the scope of permissible spending. See FDA v. Brown &

18 Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (holding that the interpretation of statutes

19 “must be guided to a degree by common sense as to the manner in which Congress is likely to

20 delegate a policy decision of such economic and political magnitude”); Util. Air Regulatory Grp.

21 v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if it wishes to assign to

22 an agency decisions of vast economic and political significance.”) (internal quotation marks

23 omitted). This is especially true given that Congress has repeatedly rejected legislation that would

24

25 18 Defendants do not convincingly explain why the amount now sought to be transferred under

26

Section 8005 could not have been sought directly from Congress as part of the fiscal year 2019 appropriation to the DoD Section 284 account to cover requests for counterdrug support, given

27

that the President has consistently maintained since before taking office that border barrier funding is necessary. If the answer is that the Administration expected, or hoped, that Congress would

28

appropriate the funds to DHS directly, that highlights rather than mitigates the present problem with Defendants’ position.

38

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 39 of 56

United States District Court Northern District of California

1 have funded substantially broader border barrier construction, as noted above, deciding in the end

2 to appropriate only $1.375 billion. See City & Cty. of San Francisco v. Trump, 897 F.3d 1225,

3 1234 (9th Cir. 2018) (“In fact, Congress has frequently considered and thus far rejected legislation

4 accomplishing the goals of the Executive Order. The sheer amount of failed legislation on this

5 issue demonstrates the importance and divisiveness of the policies in play, reinforcing the

6 Constitution’s ‘unmistakable expression of a determination that legislation by the national

7 Congress be a step-by-step, deliberate and deliberative process.’”) (citing Chadha, 462 U.S. at

8 959). In short, the Constitution gives Congress the exclusive power “not only to formulate

9 legislative policies and mandate programs and projects, but also to establish their relative priority

10 for the Nation,” McIntosh, 833 F.3d at 1172, and “Congress cannot yield up its own powers” in

11 this regard, Clinton, 524 U.S. at 452 (Kennedy, J., concurring). Defendants’ interpretation of

12 Section 8005 is inconsistent with these principles.

13

While Defendants argue that the text and history of Section 284 suggest that their proposed

14 transfer and use of the funds are within the scope of what Congress has permitted previously, Opp.

15 at 18, that argument only highlights the serious constitutional questions that accepting their

16 position would create. First, Defendants note that in the past DoD has completed what they

17 characterize as “large-scale fencing projects” with Congress’s approval. Opp. at 18 (citing H.R.

18 Rep. No. 103-200, at 330–31 (1993)). But Congress’s past approval of relatively small

19 expenditures, that were well within the total amount allocated by Congress to DoD under Section

20 284’s predecessor, speaks not at all to Defendants’ current claim that the Acting Secretary has

21 authority to redirect sums over a hundred orders of magnitude greater to that account in the face of

22 Congress’s appropriations judgment in the CAA. Similarly, whether or not Section 284 formally

23 “limits” the Secretary to “small scale construction” (defined in Section 284(i)(3) as “construction

24 at a cost not to exceed $750,000 for any project”), reading the statute to suggest that Congress

25 requires reporting of tiny projects but nonetheless has delegated authority to DoD to conduct the

26 massive funnel-and-spend project proposed here is implausible, and likely would raise serious

27 questions as to the constitutionality of such an interpretation. See Whitman v. Am. Trucking

28 Ass’ns, 531 U.S. 457, 468 (2001) (noting that Congress “does not, one might say, hide elephants 39

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 40 of 56

United States District Court Northern District of California

1 in mouseholes”).

2

Similarly, if “unforeseen” has the meaning that Defendants claim, Section 8005 would

3 give the agency making a request for assistance under Section 284 complete control over whether

4 that condition is met, simply by virtue of the timing of the request. As here, DHS could wait and

5 see whether Congress granted a requested appropriation, then turn to DoD if Congress declined,

6 and DoD could always characterize the resulting request as raising an “unforeseen” requirement

7 because it did not come earlier. Under this interpretation, DoD could in essence make a de facto

8 appropriation to DHS, evading congressional control entirely. The Court finds that this

9 interpretation likely would pose serious problems under the Appropriations Clause, by ceding

10 essentially boundless appropriations judgment to the executive agencies.

11

Finally, the Court has serious concerns with Defendants’ theory of appropriations law,

12 which presumes that the Executive Branch can exercise spending authority unless Congress

13 explicitly restricts such authority by statute. Counsel for Defendants advanced this theory at the

14 hearing on this motion, arguing that when Congress passed the recent DoD appropriations act

15 containing Section 8005, it “could have” expressly “restrict[ed] that authority” to preclude

16 reprogramming funds for border barrier construction. See Dkt. No. 138 at 76:16–77:3. According

17 to Defendants: “If Congress had wanted to deny DOD this specific use of that [reprogramming]

18 authority, that’s something it needed to actually do in an explicit way in the appropriations

19 process. And it didn’t.” Id. at 77:21–24. But it is not Congress’s burden to prohibit the Executive

20 from spending the Nation’s funds: it is the Executive’s burden to show that its desired use of those

21 funds was “affirmatively approved by Congress.” See FLRA, 665 F.3d at 1348 (“[A]ll uses of

22 appropriated funds must be affirmatively approved by Congress,” and “the mere absence of a

23 prohibition is not sufficient.”). To have this any other way would deprive Congress of its absolute

24 control over the power of the purse, “one of the most important authorities allocated to Congress

25 in the Constitution’s ‘necessary partition of power among the several departments.’” Id. at 1346–

26 47 (quoting The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961)).

27

To the extent Defendants believe the Ninth Circuit’s decision in McIntosh suggests

28 anything to the contrary, the Court disagrees. Defendants appeared to argue at the hearing on this 40

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 41 of 56

United States District Court Northern District of California

1 motion that McIntosh stands for the principle that the Executive enjoys unfettered spending power

2 unless Congress crafts an appropriations rider cabining such authority. See Dkt. No. 138 at 75:5–

3 10. As counsel for Defendants put it, “[Plaintiffs] want to say that something was denied by

4 Congress if it wasn’t funded by Congress. . . . But that is just not how these statutes are written

5 and that’s not how [McIntosh] tells us we interpret the appropriations statute.” Id. at 75:13–20.

6 But Defendants overlook that no party in McIntosh disputed that the government’s use of funds

7 was authorized but for the appropriations rider at issue in that case. See 833 F.3d at 1175 (“The

8 parties dispute whether the government’s spending money on their prosecutions violates [the

9 appropriations rider].”). It is thus unremarkable that when faced with a dispute exclusively

10 concerning whether the government’s otherwise-authorized spending of money violated an

11 appropriations rider, the Ninth Circuit held that “[i]t is a fundamental principle of appropriations

12 law that we may only consider the text of an appropriations rider.” Id. at 1178; see also Dkt. No.

13 138 at 75:5–10 (defense counsel relying on this language from McIntosh).

14

Unlike in McIntosh, where the sole dispute concerned the scope of an external limitation

15 on an otherwise-authorized spending of money, the present dispute concerns the scope of

16 limitations within Section 8005 itself on the authorization of reprogramming funds. Whether

17 Congress gives authority in the first place is not the same issue as whether Congress later restricts

18 that authority. And it cannot be the case that Congress must draft an appropriations rider to

19 breathe life into the internal limitations in Section 8005 establishing that the Executive may only

20 reprogram money based on unforeseen military requirements, and may not do so where the item

21 for which funds are requested has been denied by Congress. To adopt Defendants’ position would

22 read out these limitations entirely, which the Court cannot do. See Life Techs. Corp. v. Promega

23 Corp., 137 S. Ct. 734, 740 (2017) (“Whenever possible, however, we should favor an

24 interpretation that gives meaning to each statutory provision.”). To give meaning to—and thus to

25 construe the scope of—these internal limitations is wholly consistent with McIntosh, which

26 explained that the Executive’s authority to spend is at all times limited “by the text of the

27 appropriation.” 833 F.3d at 1178 (internal quotation marks omitted).

28

For all of these reasons, the Court finds that Plaintiffs have shown a likelihood of success

41

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 42 of 56

United States District Court Northern District of California

1 as to their argument that the reprogramming of $1 billion under Section 8005 to the Section 284

2 account for border barrier construction is unlawful.19

3

b. Section 2808

4

At the President’s direction, the DoD intends to use up to $3.6 billion in military

5 construction funding to facilitate border barrier construction. Defendants rely on Section 2808,

6 under which the Secretary of Defense may “undertake military construction projects, and may

7 authorize the Secretaries of the military departments to undertake military construction projects,

8 not otherwise authorized by law.” 10 U.S.C. § 2808(a). As is relevant here, Section 2808 requires

9 that (1) the President first declare a national emergency in accordance with the NEA that “requires

10 use of the armed forces,” (2) the use of funds be for “military construction projects,” and (3) the

11 military construction projects be “necessary to support such use of the armed forces.” Id.

12 Plaintiffs contend that Defendants’ plan to use Section 2808 to build a barrier on the U.S.-Mexico

13 border fails all three requirements.

14

Under the circumstances, it is unclear how border barrier construction could reasonably

15 constitute a “military construction project” such that Defendants’ invocation of Section 2808

16 would be lawful. Section 2808 authorizes the Secretary of Defense to “undertake military

17 construction projects.” And Congress defined the term “military construction,” as it is used in

18 Section 2808, to “include[] any construction, development, conversion, or extension of any kind

19 carried out with respect to a military installation, whether to satisfy temporary or permanent

20 requirements, or any acquisition of land or construction of a defense access road.” 10 U.S.C.

21

22 19 Defendants have now acknowledged that all of the money they plan to spend on border barrier

23

construction under Section 284 is money transferred into that account under Section 8005. See Dkt. No. 131 at 4. Given this acknowledgment, and the Court’s finding that Plaintiffs are likely to

24

show that the Section 8005 reprogramming is unlawful, the Court need not at this stage decide whether Defendants would have been permitted to use for border barrier construction any

25

remaining funds that Congress appropriated to the Section 284 account for fiscal year 2019. The Court notes that the House confirmed in its own lawsuit that it “does not challenge the expenditure

26

of any remaining appropriated funds under section 284 on the construction of a border wall.” United States House of Representatives’ Application for a Preliminary Injunction at 30, U.S.

27

House of Representatives v. Mnuchin, No. 1:19-cv-00969 (TNM) (D.D.C. Apr. 23, 2019), ECF No. 17; see also House Br. at 17 (requesting preliminary injunction “prohibiting defendants from

28

transferring and spending funds in excess of what Congress appropriated for counter-narcotics support under 10 U.S.C. § 284”).

42

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 43 of 56

United States District Court Northern District of California

1 § 2801(a). Congress in turn defined the term “military installation” to “mean[] a base, camp, post,

2 station, yard, center, or other activity under the jurisdiction of the Secretary of a military

3 department or, in the case of an activity in a foreign country, under the operational control of the

4 Secretary of a military department or the Secretary of Defense, without regard to the duration of

5 operational control.” Id. § 2801(c)(4).

6

Plaintiffs reason that border barrier construction does not constitute construction “carried

7 out with respect to a military installation,” because (1) the U.S.-Mexico border is not a military

8 “base, camp, post, station, yard, center” or “defense access road;” and (2) securing the border is

9 not an “activity under the jurisdiction of the Secretary of a military department.” Mot. at 14.

10 Instead, Congress assigned responsibility for “[s]ecuring the borders” to DHS. See 6 U.S.C.

11 § 202. Defendants respond that although the statute defines both “military construction” and its

12 nested term, “military installation,” “[b]road terms defining military construction as ‘includ[ing]’

13 (but not limited to, see 10 U.S.C. § 101(f)(4)) construction with respect to a military installation,

14 and defining military installation to include non-specified ‘other activity,’ are not the kind of clear

15 and mandatory statutory language that is a necessary predicate to an ultra vires claim.” Opp. at 23.

16

Defendants’ arguments prove too much. As explained above, Defendants misunderstand

17 the standard for ultra vires review. More to the merits, the plain language of the relevant statutory

18 definitions does not demonstrate the sort of unbounded authority that Defendants suggest.

19 Turning first to the statutory definition of “military construction,” that it uses the word “includes”

20 when it provides that military construction “includes any construction, development, conversion,

21 or extension of any kind carried out with respect to a military installation” is irrelevant. No one

22 disputes that border barrier construction constitutes “construction.” What matters is that Section

23 2801(a) limits such construction—however broad that term might be—to construction related to a

24 military installation. In other words, the critical language of Section 2801(a) is not the word

25 “includes,” it is the condition “with respect to a military installation.”

26

Turning next to the statutory definition of “military installation,” Section 2801(c)(4)

27 provides in relevant part that it “means a base, camp, post, station, yard, center, or other activity

28 under the jurisdiction of the Secretary of a military department.” And Defendants make no 43

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 44 of 56

United States District Court Northern District of California

1 attempt to characterize the U.S.-Mexico border or a border barrier as a “base, camp, post, station,

2 yard, [or] center.” Nor could they. Defendants instead contend that border barrier construction is

3 authorized under the catch-all term “other activity.” See Dkt. No. 138 at 92:9–93:22.

4

In interpreting Section 2801 to determine whether Defendants’ plan to construct a barrier

5 on the U.S.-Mexico border falls within the “other activity” category, the Court applies “traditional

6 tools of statutory construction.” Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d

7 1250, 1257 (9th Cir. 1994), amended on denial of reh’g by 99 F.3d 321 (9th Cir. 1996). The Court

8 “begin[s] with the statute’s language, which is conclusive unless literally applying the statute’s

9 text demonstrably contradicts Congress’s intent.” Chemehuevi Indian Tribe v. Newsom, 919 F.3d

10 1148, 1151 (9th Cir. 2019). “When deciding whether the language is plain, courts must read the

11 words in their context and with a view to their place in the overall statutory scheme.” Id. (quoting

12 Rainero v. Archon Corp., 844 F.3d 832, 837 (9th Cir. 2016) (internal quotation marks and

13 alterations omitted)).

14

Applying traditional tools of statutory construction, Section 2801 likely precludes treating

15 the southern border as an “other activity.” Defendants on this point fail to appreciate that the

16 words immediately preceding “or other activity” in Section 2801(c)(4)— “a base, camp, post,

17 station, yard, [and] center”—provide contextual limits on the catch-all term. The Court thus relies

18 on the doctrine of noscitur a sociis, “which is that a word is known by the company it keeps.”

19 Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995). Courts apply this rule “to avoid ascribing

20 to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving

21 ‘unintended breadth to the Acts of Congress.’” Id. (quoting Jarecki v. G.D. Searle & Co., 367 U.S.

22 303, 307 (1961)). The Supreme Court has relied on this canon of statutory interpretation many

23 times when construing detailed statutory lists followed by catch-all-type terms. Most recently, in

24 Epic Systems Corp. v. Lewis, the Court limited the term “other concerted activities” in Section 7 of

25 the National Labor Relations Act to refer to “things employees ‘just do’ for themselves in the

26 course of exercising their right to free association in the workplace,” rather than any concerted

27 activity whatsoever—including class and collective actions—because the term appeared at the end

28 of a detailed list of specific activities, none of which “speak[] to the procedures judges or 44

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 45 of 56

United States District Court Northern District of California

1 arbitrators must apply in disputes that leave the workplace and enter the courtroom or arbitral

2 forum.” 138 S. Ct. 1612, 1625 (2018). Before that, in Gustafson, the Supreme Court construed

3 the word “communication” as used in Section 2(10) of the Securities Act of 1933 to “refer[] to a

4 public communication” and not any communication whatsoever, because the word followed a list

5 of other terms—“prospectus, notice, circular, advertisement, [and] letter”—in consideration of

6 which “it [was] apparent that the list refers to documents of wide dissemination.” 513 U.S. at 575.

7

Noscitur a sociis applies with equal force in the present circumstance. The term “other

8 activity” appears after a list of closely related types of discrete and traditional military locations:

9 “a base, camp, post, station, yard, [and] center.” It is thus proper to construe “other activity” as

10 referring to similar discrete and traditional military locations. The Court does not readily see how

11 the U.S.-Mexico border could fit this bill.

12

The Court also finds relevant the ejusdem generis canon of statutory interpretation, which

13 counsels that “[w]here general words follow specific words in a statutory enumeration, the general

14 words are construed to embrace only objects similar in nature to those objects enumerated by the

15 preceding specific words.” Wash. State Dept. of Social & Health Servs. v. Guardianship Estate of

16 Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–

17 15 (2001)). At the hearing on this motion, Defendants argued that the term “other activity”

18 “capture[s] everything under the jurisdiction of the secretary of a military department.” Dkt. No.

19 138 at 92:9–13. The Court disagrees. Had Congress intended for “other activity” in Section

20 2801(c)(4) to be so broad as to transform literally any activity conducted by a Secretary of a

21 military department into a “military installation”, there would have been no reason to include a list

22 of specific, discrete military locations. See Yates v. United States, 135 S. Ct. 1074, 1087 (2015)

23 (“Had Congress intended ‘tangible object’ in § 1519 to be interpreted so generically as to capture

24 physical objects as dissimilar as documents and fish, Congress would have had no reason to refer

25 specifically to ‘record’ or ‘document.’ The Government’s unbounded reading of ‘tangible object’

26 would render those words misleading surplusage.”); CSX Transp., Inc. v. Ala. Dept. of Revenue,

27 562 U.S. 277, 295 (“We typically use ejusdem generis to ensure that a general word will not

28 render specific words meaningless.”). 45

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 46 of 56

United States District Court Northern District of California

1

To be clear, “other activity” is not an empty term. Congress undoubtedly contemplated

2 that military installations would encompass more than just “a base, camp, post, station, yard, [or]

3 center.” But the Court need not stake out the term’s outer limits here. All that matters for present

4 purposes is that, in context and with an eye toward the overall statutory scheme, nothing

5 demonstrates that Congress ever contemplated that “other activity” has such an unbounded reading

6 that it would authorize Defendants to invoke Section 2808 to build a barrier on the southern

7 border.

8

Despite its concerns with Defendants’ arguments on this point, the Court need not now

9 address whether Plaintiffs are likely to succeed on the merits of their claim that Defendants’

10 ultimate plan to divert funds under Section 2808 is ultra vires. That is because, as discussed

11 below, Plaintiffs have not met their independently necessary burden of showing a likelihood of

12 irreparable harm from the use of funds under Section 2808 for construction at as-yet-unspecified

13 locations so as to be entitled to a preliminary injunction.

14

c. NEPA

15

After Plaintiffs filed the instant motion—and one day before Defendants filed their

16 opposition—the Acting Secretary of Homeland Security invoked his authority under Section

17 102(c) of IIRIRA to waive any NEPA requirements for construction in the El Paso and Yuma

18 sectors. See Opp. at 25–26; see also Determination Pursuant to Section 102 of the Illegal

19 Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg.

20 17185-01 (Apr. 24, 2019); REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat. 231, 306

21 (May 11, 2005) (amending Section 102(c) to reflect that the Secretary “ha[s] the authority to

22 waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure

23 expeditious construction” of barriers and roads). The Acting Secretary later waived NEPA

24 requirements for the El Centro and Tucson Sectors Projects as well, on the same basis. See

25 Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant

26 Responsibility Act of 1996, as Amended, 84 Fed. Reg. 21,798 (May 15, 2019); Determination

27 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of

28 1996, as Amended, 84 Fed. Reg. 21,800 (May 15, 2019). 46

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 47 of 56

United States District Court Northern District of California

1

Defendants contend that such waivers preclude Plaintiffs from advancing a NEPA claim.

2 Opp. at 26 (citing In re Border Infrastructure Envtl. Litig., 915 F.3d 1213, 1221 (9th Cir. 2019)).

3 Plaintiffs respond that DHS’s authority to waive NEPA requirements for construction under

4 IIRIRA does not extend to construction undertaken by DoD under its own spending authority.

5 Reply at 18–19. Plaintiffs further contend that “Defendants’ argument is incompatible with their

6 own claim that they are not constructing the El Paso and Yuma sections of border wall under

7 IIRIRA authority, but instead under the wholly separate DoD authority,” and suggest that

8 “Defendants cannot have it both ways.” Reply at 18–19.

9

Neither set of Plaintiffs appears to contest that the waivers, if applicable, would be

10 dispositive of the NEPA claims. See, e.g., Plaintiff States’ Reply at 16, California v. Trump, No.

11 4:19-cv-00872-HSG (N.D. Cal. May 2, 2019), ECF No. 112 (“States Reply”) (“Plaintiffs do not

12 dispute DHS’s ability to waive NEPA compliance when constructing barriers pursuant to

13 [IIRIRA], with funds specifically appropriated by Congress to be used for that construction.”)

14 (emphasis in original); see also In re Border Infrastructure Envtl. Litig., 915 F.3d at 1221 (“[A]

15 valid waiver of the relevant environmental laws under section 102(c) is an affirmative defense to

16 all the environmental claims [including NEPA claims],” and is “dispositive of [those] claims.”).

17 But Plaintiffs contend that “the DHS Secretary’s waiver under IIRIRA does not waive DOD’s

18 obligations to comply with NEPA prior to proceeding with El Paso Project 1 under DOD’s

19 statutory authority, 10 U.S.C. § 284, and using DOD’s appropriations,” so that “DHS’s waiver has

20 no application to this project.” States Reply at 16 (emphasis added); see also Reply at 19

21 (“Defendants identify no statutory authority for a waiver for ‘expeditious construction’ under

22 DOD’s § 284 authority, and none exists.”).

23

The Court finds that Plaintiffs are not likely to succeed on their NEPA argument because

24 of the waivers issued by DHS. DoD’s authority under Section 284 is derivative. Under the

25 statute, DoD is limited to providing support (including construction support) to other agencies, and

26 may invoke its authority only in response to a request from such an agency. See 10 U.S.C. § 284

27 (“The Secretary of Defense may provide support for the counterdrug activities . . . of any other

28 department or agency of the Federal Government,” including support for “[c]onstruction of roads 47

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 48 of 56

United States District Court Northern District of California

1 and fences,” if “such support is requested . . . by the official who has responsibility for the

2 counterdrug activities.”). Here, DHS has made such a request, invoking “its authority under

3 Section 102 of IIRIRA to install additional physical barriers and roads” in designated areas,

4 seeking support for its “ability to impede and deny illegal entry and drug smuggling activities.”

5 Citizen Groups RJN Ex. I, at 1. DHS requested DoD’s assistance “[t]o support DHS’s action

6 under Section 102.” Id. at 2. Plaintiffs’ argument would require the Court to find that even

7 though it is undisputed that DHS could waive NEPA’s requirements if it were paying for the

8 projects out of its own budget, that waiver is inoperative when DoD provides support in response

9 to a request from DHS. The Court finds it unlikely that Congress intended to impose different

10 NEPA requirements on DoD when it acts in support of DHS’s Section 102 authority in response to

11 a direct request under Section 284 than would apply to DHS itself.20 See Defs. of Wildlife v.

12 Chertoff, 527 F. Supp. 2d 119, 121, 129 (D.D.C. 2007) (finding DHS’s Section 102 waiver

13 authority authorized the DHS Secretary to waive legal requirements where the U.S. Army Corps

14 of Engineers, a federal agency within the DoD, was constructing border fencing “on behalf of

15 DHS”).21

16

2. Likelihood of Irreparable Injury

17

Plaintiffs advance three theories of irreparable harm: (1) harm to their members’ aesthetic

18 and recreational interests in areas threatened by border barrier construction; (2) constitutional

19 harm; and (3) harm to Plaintiff SBCC and its member organizations’ ability to carry out their

20 missions. Mot. at 22–25; Reply at 19–24. Critical to this analysis is that while Defendants have

21 committed to fund border barrier construction in the El Paso Sector 1 and Yuma Sector 1 projects

22

23 20 Plaintiff States argue that “[i]n another context, Congress explicitly allows the DOD Secretary

24

to request ‘the head of another agency responsible for the administration of navigation or vesselinspection laws to waive compliance with those laws to the extent the Secretary considers

25

necessary.’” States Reply at 17 (citing 46 U.S.C. § 501(a)). The Court finds this statute to be irrelevant to the issue here. In this case, DoD is acting solely in response to DHS’s request for

26

support under Section 102; DHS has undisputed authority to issue waivers under that section; and it would not make sense to make NEPA compliance a condition of DoD’s derivative support

27

notwithstanding DHS’s waiver. 21 To the extent Plaintiffs’ argument is that the government “cannot have it both ways,” the Court

28

agrees, to the extent it found a likelihood of success as to Plaintiffs’ Section 8005 argument, as discussed in Section IV.B.1.a, above.

48

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 49 of 56

United States District Court Northern District of California

1 using funds reprogrammed and subsequently used under Sections 8005 and 284, Defendants have

2 not committed to fund any border barrier construction using Section 2808. Because of this

3 distinction, the Court addresses the two categories separately.

4

a. Sections 8005 and 284

5

The Court finds that Plaintiffs have demonstrated a likelihood of irreparable harm to their

6 members’ aesthetic and recreational interests in the areas known as El Paso Sector Project 1 and

7 Yuma Sector Project 1.

8

As the Ninth Circuit has explained, “it would be incorrect to hold that all potential

9 environmental injury warrants an injunction.” League of Wilderness Defs./Blue Mountains

10 Biodiversity Project v. Connaughton, 752 F.3d 755, 764 (9th Cir. 2014). “Environmental injury,”

11 however, “by its nature, can seldom be adequately remedied by money damages and is often

12 permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell,

13 Alaska, 480 U.S. 531, 545 (1987). Plaintiffs must nonetheless demonstrate that irreparable injury

14 “is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Mere “possibility” of

15 irreparable harm does not merit a preliminary injunction. Id. But it is well-established in the

16 Ninth Circuit that an organization can demonstrate irreparable harm by showing that the

17 challenged action will injure its members’ enjoyment of public land. See All. for Wild Rockies,

18 632 F.3d at 1135.

19

Turning to Plaintiffs’ aesthetic and recreational interests, Plaintiffs provide declarations

20 from several members, detailing how Defendants’ proposed use of funds reprogrammed under

21 Section 8005 and then used under Section 284 for border barrier construction will harm their

22 ability to recreate in and otherwise enjoy public land along the border. See Dkt. No. 30 (“Del Val

23 Decl.”) ¶¶ 7–9 (alleging harm from border barrier construction and the accompanying lighting in

24 the Yuma Sector Project 1 to declarant’s “ability to fish” and general enjoyment of natural

25 environment); Dkt. No. 31 (“Munro Decl.”) ¶ 11 (alleging harm from border barrier construction

26 in El Paso Sector Project 1 to declarant’s “happiness and sense of fulfillment,” which she

27 “derive[s] from visiting these beautiful landscapes”); Dkt. No. 34 (“Bixby Decl.”) ¶¶ 6, 12

28 (alleging harm from border barrier construction in El Paso Sector Project 1 to declarant’s hiking 49

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 50 of 56

United States District Court Northern District of California

1 and camping interests); Dkt. No. 35 (“Walsh Decl.”) ¶¶ 8–12 (alleging harm from border barrier

2 construction in El Paso Sector Project 1 to declarant’s recreational interests, including “bird

3 watching and hiking”).

4

Defendants argue that Plaintiffs’ alleged recreational harms are insufficient for two

5 reasons. First, Defendants argue that Plaintiffs have not demonstrated “that any species-level

6 impacts are likely as a result of border wall construction.” See Opp. at 29. But Defendants here

7 misunderstand Plaintiffs’ theory. Plaintiffs’ declarants nowhere state that their recreational

8 interest is merely the enjoyment of a particular species. Defendants’ second argument is that their

9 planned “replacement of existing pedestrian border infrastructure . . . will not change conditions

10 where Mr. Del Val fishes.” Id. at 30–31. But Defendants here understate the effects of what they

11 now characterize as mere “replacement of existing pedestrian border infrastructure.” By

12 Defendants’ own description, they intend to replace four-to-six-foot vehicle barriers in the Yuma

13 Sector Project 1 area with a thirty-foot “bollard wall,” where “[t]he bollards are steel-filled

14 concrete that are approximately six inches in diameter and spaced approximately four inches

15 apart” and accompanied by lighting. See Dkt. No. 64-9 (“Enriquez Decl.”) ¶ 12 & Ex. C, at 2-1.

16 Even if the characteristics of the wall were unchanged—which is not the case—Mr. Del Val

17 alleges recreational harms from not only the bollard wall construction but also the accompanying

18 lighting, which does not currently exist. See Del Val Decl. ¶ 9. Because the Court finds that

19 Defendants’ proposed construction in Yuma Sector Project 1 constitutes a change in conditions for

20 Mr. Del Val, it rejects Defendants’ second challenge to Plaintiffs’ alleged recreational harms.

21

Plaintiffs have shown that Defendants’ proposed construction will lead to a substantial

22 change in the environment, the nature of which will harm their members’ aesthetic and

23 recreational interests. The funding of border barrier construction, if indeed barred by law, cannot

24 be remedied easily after the fact, and yet Defendants intend to commence construction

25 immediately and complete it expeditiously. Thus, “[t]he harm here, as with many instances of this

26 kind of harm, is irreparable for the purposes of the preliminary injunction analysis.” See League

27 of Wilderness Defenders/Blue Mountains Biodiversity Project, 752 F.3d at 764.

28 // 50

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 51 of 56

United States District Court Northern District of California

1

b. Section 2808

2

Because Defendants have not disclosed a plan for diverting funds under Section 2808 for

3 border barrier construction, the Court cannot now determine a likelihood of harm to Plaintiffs’

4 members’ aesthetic and recreational interests. The Court thus turns to Plaintiffs’ other theories of

5 irreparable injury.

6

To start, to the extent Plaintiffs rely on American Trucking Associations, Inc. v. City of Los

7 Angeles, 559 F.3d 1046, 1058–59 (9th Cir. 2009), for the principle that a constitutional violation

8 alone suffices to show irreparable harm, the Court finds that principle unavailing. See Mot. at 25.

9 Even under that theory of irreparable harm, Plaintiffs must demonstrate some likely irreparable

10 harm in the absence of a preliminary injunction barring the challenged action, and not simply a

11 constitutional violation. See id. (noting that the constitutional violation must be “coupled with the

12 damages incurred,” which in that case involved “a good deal of economic harm in the interim”).

13

Plaintiffs primary alternative theory of irreparable injury is that Defendants’ invocation of

14 and use of funds under Section 2808 for border barrier construction has harmed and continues to

15 harm Plaintiff SBCC and its member organizations’ ability to carry out their missions. See Mot. at

16 23–25. To this end, Plaintiffs describe that “several senior SBCC staff have devoted a ‘majority’

17 of their time to analyzing and responding to” Defendants’ invocation of Sections 2808 and 284.

18 Id. at 24. Defendants acts purportedly have forced SBCC to “field[] inquiries from members,

19 journalists and elected officials; create[] new educational materials, media toolkits and multimedia

20 content; and host[] trainings for staff and partners.” Id. Tending to these activities has frustrated

21 SBCC and its member organizations’ ability to focus on their “core missions.” Id. In Plaintiffs’

22 view, “[s]uch injuries are sufficient to demonstrate a likelihood of irreparable harm and justify

23 preliminary injunctive relief.” Id.

24

But Plaintiffs conflate the type of harm to organizational mission that gives rise to Article

25 III standing and the type of harm necessary for a preliminary injunction. There is no dispute that

26 the “perceptibl[e] impair[ment]” of an organization’s ability to carry out its mission that results in

27 a “drain on the organization’s resources” is enough for Article III standing. See Havens Realty

28 Corp. v. Coleman, 455 U.S. 363, 379 (1982). But to warrant a preliminary injunction, Plaintiffs 51

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 52 of 56

United States District Court Northern District of California

1 must do more than just assert irreparable harm. Winter commands that plaintiffs seeking a

2 preliminary injunction establish that they are “likely to suffer irreparable harm in the absence of

3 preliminary relief.” 555 U.S. at 20 (emphasis added). Plaintiffs ignore the “in the absence of

4 preliminary relief” component, but Winter is not complicated on this point. Under Winter,

5 Plaintiffs must demonstrate that preliminary injunctive relief will prevent some irreparable injury

6 that is likely to occur before the Court has time to decide the case on the merits. In other words,

7 Plaintiffs must present some persuasive counterfactual analysis showing a likelihood that

8 irreparable harm would occur absent an injunction, but would not occur if an injunction is granted.

9 But as it stands, nothing indicates that Plaintiffs’ proffered “diversion” of funds or resources

10 would change at all if the Court were to issue an injunction. With or without an injunction,

11 Plaintiffs will have to continue to litigate this case and otherwise divert resources in the manner

12 they have described until the case is resolved.

13

All three cases on which Plaintiffs rely to support their mission-frustration theory support

14 the Court’s conclusion. First, in Valle de Sol Inc. v. Whiting, plaintiffs faced a “credible threat of

15 prosecution” under an allegedly unconstitutional statute, where the resulting injury could not be

16 remedied by monetary damages. 732 F.3d 1006, 1029 (9th Cir. 2013). But that is the

17 quintessential sort of irreparable harm warranting an injunction. See Ex parte Young, 209 U.S.

18 123, 155–56 (1908) (“The various authorities we have referred to furnish ample justification for

19 the assertion that individuals who, as officers of the state, are clothed with some duty in regard to

20 the enforcement of the laws of the state, and who threaten and are about to commence

21 proceedings, either of a civil or criminal nature, to enforce against parties affected an

22 unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of

23 equity from such action.”). Next, in East Bay Sanctuary Covenant v. Trump, the plaintiff

24 organizations sufficiently demonstrated that they faced a substantial loss of funding in the absence

25 of an injunction. 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018); see also Cty. of Santa Clara v.

26 Trump, 250 F. Supp. 3d 497, 537 (N.D. Cal. 2017) (“Without clarification regarding the Order’s

27 scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing millions

28 of dollars in federal funding, which will include placing funds in reserve and making cuts to 52

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 53 of 56

United States District Court Northern District of California

1 services.”). Finally, in League of Women Voters v. Newby, plaintiffs demonstrated that their

2 mission interest in registering voters faced likely irreparable injury absent a preliminary injunction

3 because registration deadlines would pass before resolution of the case on the merits. 838 F.3d 1,

4 9 (D.C. Cir. 2016) (“Because, as a result of the Newby Decisions, those new obstacles

5 unquestionably make it more difficult for the Leagues to accomplish their primary mission of

6 registering voters, they provide injury for purposes both of standing and irreparable harm. And

7 that harm is irreparable because after the registration deadlines for the November election pass,

8 there can be no do over and no redress.”) (internal quotation marks and citations omitted).

9

In all three cases, a counterfactual existed which demonstrated the need for a preliminary

10 injunction. In Valle, injunctive relief meant the difference between prosecution under an

11 unconstitutional statute or not. In East Bay Sanctuary Covenant and County of Santa Clara,

12 injunctive relief meant the difference between organizations losing substantial funding or not. In

13 League of Women Voters, injunctive relief meant the difference between registering voters for an

14 election in keeping with organizations’ mission interests or not. Here, however, Plaintiffs present

15 no evidence that injunctive relief will make any difference to the purported harm to their mission

16 interests, which will continue until this case’s resolution. Plaintiffs thus have not carried their

17 burden to show that the “extraordinary remedy” of a preliminary injunction is warranted in this

18 regard. See Winter, 555 U.S. at 20.

19

Although the Court finds that Plaintiffs have not yet met their burden of showing

20 irreparable harm in the absence of a preliminary injunction, the Court fully expects that if and

21 when Defendants identify border barrier construction locations where Section 2808 funds will be

22 used, Plaintiffs will have the opportunity to submit materials in support of their irreparable harm

23 claim. The Court takes Defendants at their word that they “will inform the Court” immediately

24 once a decision is made to use Section 2808 to fund border barrier construction. See Dkt. No. 131

25 at 3.

26

3. Balance of Equities and Public Interest

27

When the government is a party to a case in which a preliminary injunction is sought, the

28 balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 53

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 54 of 56

United States District Court Northern District of California

1 F.3d 1073, 1092 (9th Cir. 2014). According to Defendants, these factors tilt in their favor,

2 because their “weighty” interest in border security and immigration-law enforcement, as

3 sanctioned by Congress, outweighs Plaintiffs’ “speculative” injuries. Opp. at 34–35. The Ninth

4 Circuit has recognized that “the public has a ‘weighty’ interest ‘in efficient administration of the

5 immigration laws at the border,’” and the Court does not minimize this interest. See E. Bay

6 Sanctuary Covenant v. Trump, 909 F.3d 1219, 1255 (9th Cir. 2018) (quoting Landon v. Plasencia,

7 459 U.S. 21, 34 (1982)). On the other hand, “the public also has an interest in ensuring that

8 statutes enacted by their representatives are not imperiled by executive fiat.” Id. (internal

9 quotation marks and brackets omitted). And the Court has found above that Plaintiffs’ injuries as

10 to El Paso Sector Project 1 and Yuma Sector Project 1 are not speculative, and will be irreparable

11 in the absence of an injunction. Accordingly, this factor favors Plaintiffs, and counsels in favor of

12 a preliminary injunction, to preserve the status quo until the merits of the case can be promptly 13 resolved.22

14 V. 15

CONCLUSION Congress’s “absolute” control over federal expenditures—even when that control may

16 frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a

17 bug in our constitutional system. It is a feature of that system, and an essential one. See FLRA,

18 665 F.3d at 1346–47 (“The power over the purse was one of the most important authorities

19 allocated to Congress in the Constitution’s ‘necessary partition of power among the several

20 departments.’”) (quoting The Federalist No. 51, at 320 (James Madison)). The Appropriations

21 Clause is “a bulwark of the Constitution’s separation of powers among the three branches of the

22 National Government,” and is “particularly important as a restraint on Executive Branch officers.”

23 Id. at 1347. In short, the position that when Congress declines the Executive’s request to

24

25 22 The Court observes that, although Congress appropriated $1.571 billion for physical barriers

26

and associated technology along the Southwest border for fiscal year 2018, counsel for the House has represented to the Court that the Administration has stated as recently as April 30, 2019 that

27

CBP represents it has only constructed 1.7 miles of fencing with that funding. See Dkt. No. 139; see also Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) 132

28

Stat. 348 (2018). This representation tends to undermine Defendants’ claim that irreparable harm will result if the funds at issue on this motion are not deployed immediately.

54

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 55 of 56

United States District Court Northern District of California

1 appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without

2 Congress” does not square with fundamental separation of powers principles dating back to the

3 earliest days of our Republic. See City & Cty of San Francisco, 897 F.3d at 1232 (“[I]f the

4 decision to spend is determined by the Executive alone, without adequate control by the citizen’s

5 Representatives in Congress, liberty is threatened.”) (internal quotation marks and brackets

6 omitted) (quoting Clinton, 524 U.S. at 451) (Kennedy, J., concurring). Justice Frankfurter wrote

7 in 1952 that “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,”

8 Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring), and that remains no less true today.

9 But “if there is a separation-of-powers concern here, it is between the President and Congress, a

10 boundary that [courts] are sometimes called upon to enforce.” E. Bay Sanctuary Covenant, 909

11 F.3d at 1250; see also Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir.

12 2017) (“To declare that courts cannot even look to a statute passed by Congress to fulfill

13 international obligations turns on its head the role of the courts and our core respect for a co-equal

14 political branch, Congress.”). Because the Court has found that Plaintiffs are likely to show that

15 Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from

16 those actions, a preliminary injunction must issue pending a resolution of the merits of the case.

17

For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN PART

18 WITHOUT PREJUDICE Plaintiffs’ motion for a preliminary injunction. The terms of the

19 injunction are as follows23: Defendants Patrick M. Shanahan, in his official capacity as Acting

20 Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of

21 Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of

22 the Treasury, and all persons acting under their direction, are enjoined from taking any action to

23 construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El

24 Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department

25 of Defense Appropriations Act, 2019.

26

A case management conference is set for June 5, 2019 at 2:00 p.m. At the case

27

28

23 The Court finds that an injunction against the President personally is not warranted here. See Cty. of Santa Clara, 250 F. Supp. 3d at 549–40.

55

Case 4:19-cv-00892-HSG Document 144 Filed 05/24/19 Page 56 of 56

United States District Court Northern District of California

1 management conference, the parties should be prepared to discuss a plan for expeditiously

2 resolving this matter on the merits, whether through a bench trial, cross-motions for summary

3 judgment, or other means. The parties must submit a joint case management statement by May

4 31, 2019.

5

IT IS SO ORDERED.

6 Dated: 5/24/2019

7

8

9

HAYWOOD S. GILLIAM, JR. United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 56

 
 Case 4:19-cv-00892-HSG Document 152 Filed 05/30/19 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

SIERRA CLUB, et al.,

8

Plaintiffs,

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 19-cv-00892-HSG
ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION Re: Dkt. Nos. 146, 147

12

13

Pending before the Court is Defendants’ Motion to Stay Preliminary Injunction Pending

14 Appeal. See Dkt. No. 146 (“Mot.”). Defendants seek a stay of the Court’s May 24, 2019

15 preliminary injunction order pending the outcome of their recently filed appeal to the United

16 States Court of Appeals for the Ninth Circuit. See Dkt. No. 144 (“Order”). The Order enjoined

17 Defendants from “taking any action to construct a border barrier in the areas Defendants have

18 identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by 19 DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.” Id. at 55.1

20

“A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v.

21 Holder, 556 U.S. 418, 433 (2009) (internal quotation marks omitted). Instead, it is “an exercise of

22 judicial discretion,” and “the propriety of its issue is dependent upon the circumstances of the

23 particular case.” Id. (internal quotation and alteration marks omitted). The party seeking a stay

24 bears the burden of justifying the exercise of that discretion. Id. at 433–34.

25

26 1 Reasonably, Defendants “request that the Court rule on this motion expeditiously,” without a

27

response from Plaintiffs, and without oral argument, so that Defendants may promptly seek relief in the Ninth Circuit if the Court denies the motion to stay. Mot. at 1. The Court finds this matter

28

appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). The Court further finds that no response from Plaintiffs is necessary.

Case 4:19-cv-00892-HSG Document 152 Filed 05/30/19 Page 2 of 2

United States District Court Northern District of California

1

Whether to grant a stay pending appeal involves a similar inquiry as whether to issue a

2 preliminary injunction. Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988). Courts

3 consider four familiar factors: “(1) whether the stay applicant has made a strong showing that he

4 is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a

5 stay; (3) whether issuance of the stay will substantially injure the other parties interested in the

6 proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434 (noting overlap with

7 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)). The first two factors “are

8 the most critical.” Id.

9

The Court will not stay its preliminary injunction order pending Defendants’ appeal. The

10 Court does not find that Defendants are likely to prevail on the merits of their appeal. In granting

11 the preliminary injunction, the Court rejected all of the arguments Defendants now advance

12 regarding their intended use of funds reprogrammed by DoD under Section 8005, and found that

13 Plaintiffs, not Defendants, were likely to succeed on the merits of their respective arguments. The

14 Court incorporates that reasoning here. Moreover, Defendants’ request to proceed immediately

15 with the enjoined construction would not preserve the status quo pending resolution of the merits

16 of Plaintiffs’ claims, and would instead effectively moot those claims. Finally, the Court

17 continues to see no reason that the merits of this case cannot be resolved expeditiously, enabling

18 the parties to litigate a final judgment on appeal, rather than a preliminary injunction.

19

For these reasons, the Court DENIES Defendants’ Motion to Stay.2 Defendants’ Motion

20 to Shorten Time is TERMINATED AS MOOT. See Dkt. No. 147.

21

IT IS SO ORDERED.

22 Dated: 5/30/2019

23

24

25

HAYWOOD S. GILLIAM, JR. United States District Judge

26

27 2 Because the Court finds that Defendants have not met their burden to make a strong showing that

28

they are likely to succeed on the merits of their appeal, the Court need not further address the other Nken factors.

2

 
 Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 1 of 11

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

SIERRA CLUB, et al.,

8

Plaintiffs,

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

12

13

Case No. 19-cv-00892-HSG
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, CERTIFYING JUDGMENT FOR APPEAL, AND DENYING REQUEST TO STAY
Re: Dkt. Nos. 168, 181

14

Pending before the Court are cross-motions for partial summary judgment filed by

15 Plaintiffs Sierra Club and Southern Border Communities Coalition, and Defendants Donald J.

16 Trump, in his official capacity as President of the United States; Mark T. Esper, in his official 17 capacity as Acting Secretary of Defense1; Kevin K. McAleenan, in his official capacity as Acting

18 Secretary of Homeland Security2; and Steven T. Mnuchin, in his official capacity as Secretary of

19 the Department of the Treasury, briefing for which is complete. Dkt. Nos. 168 (“Pls.’ Mot.”), 181

20 (“Defs.’ Mot.”), 192 (“Pls.’ Reply”). The only issue presently before the Court concerns

21 Defendants’ intended reprogramming of funds under Sections 8005 and 9002 of the Department of

22 Defense Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018), and subsequent 23 use of such funds under 10 U.S.C. § 284 (“Section 284”) for border barrier construction.3

24

25 1 Acting Secretary Esper is automatically substituted for former Acting Secretary Patrick M.

26

Shanaham. See Fed. R. Civ. P. 25(d). 2 Acting Secretary McAleenan is automatically substituted for former Secretary Kirstjen M.

27

Nielsen. See Fed. R. Civ. P. 25(d). 3 The relevant background for this motion is essentially unchanged since the Court’s preliminary

28

injunction order. The Court thus incorporates in full here the factual background and statutory framework as set forth in that order. See Dkt. No. 144.

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 2 of 11

United States District Court Northern District of California

1

After carefully considering the parties’ arguments, the Court GRANTS IN PART and

2 DENIES IN PART Plaintiffs’ motion, and DENIES Defendants’ motion.4 The Court also

3 certifies this judgment for immediate appeal pursuant to Rule 54(b) of the Federal Rules of Civil

4 Procedure. Last, the Court DENIES Defendants’ request for a stay of any injunction pending

5 appeal.

6 I. 7

LEGAL STANDARD Summary judgment is proper when a “movant shows that there is no genuine dispute as to

8 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

9 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

10 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence

11 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.

12 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from

13 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.

14 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence

15 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997),

16 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court

17 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to

18 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a).

19

The parties agree that the issue presently before the Court is properly resolved on their

20 cross-motions for partial summary judgment. Pls.’ Mot. at 8–9; Defs.’ Mot. at 9.

21 II. DISCUSSION

22

In their motion, Plaintiffs request that the Court (1) enter final judgment in their favor

23 “declaring unlawful Defendants’ transfer of Fiscal Year 2019 appropriated funds to the

24 Department of Defense’s [(“DoD’s”)] Section 284 account, the use of those funds for construction

25 of a border wall, and Defendants’ failure to comply with NEPA for this construction”; (2) issue a

26

27 4 In light of the extended oral argument regarding these issues at the preliminary injunction

28

hearing, see Dkt. No. 138, the Court finds these matters appropriate for disposition without oral argument and the matters are deemed submitted, see Civil L.R. 7-1(b).

2

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 3 of 11

United States District Court Northern District of California

1 permanent injunction prohibiting Defendants from so funding border barrier construction “prior to

2 complying with NEPA”; and (3) enjoin such unlawful use of funds generally. Pls.’ Mot. at 1.

3 Defendants’ motion seeks a final determination that their intended use of funds under Sections

4 8005, 9002, and 284 for border barrier construction is lawful. Defs.’ Mot. at 2. Defendants also

5 request that the Court certify this judgment for appeal under Rule 54(b). Id. at 24–25.

6

A. Declaratory Relief

7

Plaintiffs seek a declaratory judgment finding unlawful Defendants’ (1) reprogramming of

8 funds under Sections 8005 and 9002, (2) use of those funds for border barrier construction under

9 Section 284, and (3) failure to comply with NEPA before pursuing any such construction. See

10 Pls.’ Mot. at 1.

11

1. Sections 8005, 9002, and 284

12

Starting with Section 8005, the Court previously held that Plaintiffs were likely to succeed

13 on their arguments that Defendants’ intended reprogramming of funds under Section 8005 to the

14 Section 284 account to fund border barrier construction in El Paso Sector 1 and Yuma Sector 1 is

15 unlawful. In particular, the Court found that Plaintiffs were likely to show that (1) the item for

16 which funds are requested has been denied by Congress; (2) the transfer is not based on

17 “unforeseen military requirements”; and (3) accepting Defendants’ proposed interpretation of 18 Section 8005’s requirements would raise serious constitutional questions.5 Dkt. No. 144 (“PI

19 Order”) at 31–42.

20

The Court previously only considered Defendants’ reprogramming and subsequent use of

21 funds for border barrier construction for El Paso Sector Project 1 and Yuma Sector Project 1. It

22 did not consider Defendants’ more-recently announced reprogramming and subsequent diversion

23 of funds for border barrier construction for the El Centro Sector Project and Tucson Sector

24 Projects 1–3, pending further development of the record as to those projects. See id. at 12. To

25 fund these projects, Defendants again invoked Section 8005, as well as DoD’s “special transfer

26

27

5 The Court did not consider whether Defendants’ reprogramming of funds was for a “higher priority item”—an independently necessary requirement under Section 8005—because

28

Defendants’ planned use of such reprogrammed funds failed multiple other Section 8005 requirements. The Court similarly does not consider the “higher priority item” requirement here.

3

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 4 of 11

United States District Court Northern District of California

1 authority under section 9002 of the Department of Defense Appropriations Act, 2019, and section

2 1512 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.” See Dkt.

3 No. 118-1 (“Rapuano Second Decl.”) ¶ 7. Defendants’ Section 9002 authority, however, is

4 subject to Section 8005’s limitations. See Department of Defense Appropriations Act, 2019, Pub.

5 L. No. 115-245, § 9002, 132 Stat. 2981, 3042 (2018) (providing that “the authority provided in

6 this section is in addition to any other transfer authority available to the Department of Defense

7 and is subject to the same terms and conditions as the authority provided in section 8005 of this

8 Act”); see also Defs.’ Mot. at 10 n.4 (acknowledging that Section 9002 is subject to Section

9 8005’s requirements). Because Defendants agree that all such authority is subject to Section

10 8005’s substantive requirements, the Court refers to these requirements collectively by reference

11 to Section 8005.

12

In their pending motion, “Defendants acknowledge that the Court previously rejected

13 [their] arguments about the proper interpretation of § 8005 in its [preliminary injunction] order.”

14 Defs.’ Mot. at 10. Defendants contend that the Court’s findings were wrong for two reasons: (1)

15 “Plaintiffs fall outside the zone of interests of § 8005 and thus cannot sue to enforce it”; and (2)

16 “DoD has satisfied the requirements set forth in § 8005.” Id. at 10–13. But Defendants here offer

17 no evidence or argument that was not already considered in the Court’s preliminary injunction

18 order. For example, Defendants continue to argue that under Lexmark International, Inc. v. Static

19 Control Components, Inc., 572 U.S. 118 (2014), the zone-of-interests test applies to Plaintiffs’

20 claims. Compare Opp. at 10, with Dkt. No. 64 at 14–15. And the Court continues to find that the

21 test has no application in an ultra vires challenge, which operates outside of the APA framework,

22 and the Court incorporates here its prior reasoning on this point. PI Order at 29–30.

23

Defendants also continue to assert that DoD did not transfer funds for an item previously

24 denied by Congress and that the transfer was for an “unforeseen” requirement. Compare Opp. at

25 11–13, with Dkt. No. 64 at 16–18. But Defendants again present no new evidence or argument for

26 why the Court should depart from its prior decision, and it will not. The Court thus stands by its

27 prior finding that Defendants’ proposed interpretation of the statute is unreasonable, and agrees

28 with Plaintiffs that Defendants’ intended reprogramming of funds under Section 8005—and 4

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 5 of 11

United States District Court Northern District of California

1 necessarily under Section 9002 as well—to the Section 284 account for border barrier construction

2 is unlawful. See PI Order at 31–42. Because no new factual or legal arguments persuade the

3 Court that its analysis in the preliminary injunction order was wrong, Plaintiffs’ likelihood of

4 success on the merits has ripened into actual success. The Court accordingly GRANTS Plaintiffs’

5 request for declaratory judgment that such use of funds reprogrammed under Sections 8005 and

6 9002 for El Paso Sector Project 1, Yuma Sector Project 1, El Centro Sector Project, and Tucson

7 Sector Projects 1–3 is unlawful.6

8

Turning to Section 284, the Court finds that it need not determine whether Plaintiffs are

9 entitled to declaratory judgment that Defendants’ invocation of Section 284 is also unlawful.

10 When a party requests declaratory judgment, “the question in each case is whether the facts

11 alleged, under all the circumstances, show that there is a substantial controversy, between parties

12 having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

13 declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). Having

14 determined that Defendants’ proposed reprogramming of funds under Sections 8005 and 9002 is

15 unlawful, no immediate adverse legal interests warrant a declaratory judgment concerning Section

16 284. Defendants acknowledge that all of the money they plan to spend on border barrier

17 construction under Section 284 is money transferred into the relevant account under Sections 8005

18 and 9002. See Dkt. No. 131 at 4. Given this acknowledgment, the Court’s ruling as to Sections

19 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants’ invocation

20 of Section 284.

21

2. NEPA

22

Separate and apart from whether Defendants’ invocations of Sections 8005, 9002, and 284

23 to fund border barrier construction conform with respective statutory requirements, Plaintiffs seek

24 a declaratory judgment deeming unlawful Defendants’ failure to comply with NEPA before

25 pursuing such construction. See, e.g., Pls.’ Mot. at 24. Plaintiffs acknowledge that they present

26

27

6 Plaintiffs’ motion seeks a broader declaratory judgment that any use of reprogrammed funds for border barrier construction, even outside of these particular sectors, is unlawful. See Mot. at 23–

28

24. Given that Defendants have not yet authorized any border barrier construction outside of the contested sectors, the Court declines to issue such a declaratory judgment.

5

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 6 of 11

United States District Court Northern District of California

1 identical arguments previously raised and rejected by the Court in its preliminary injunction order.

2 See id. at 18 n.3. Presented with no new evidence or argument that was not already considered in

3 the Court’s preliminary injunction order, the Court continues to find that the pertinent waivers

4 issued by DHS are dispositive of the NEPA claims, for the reasons detailed in the Court’s previous

5 order. See PI Order at 46–48.

6

B. INJUNCTIVE RELIEF

7

It is a well-established principle of equity that a permanent injunction is appropriate when:

8 (1) a plaintiff will “suffer[] an irreparable injury” absent an injunction; (2) available remedies at

9 law are “inadequate;” (3) the “balance of hardships” between the parties supports an equitable

10 remedy; and (4) the public interest is “not disserved.” eBay Inc. v. MercExchange, LLC, 547 U.S.

11 388, 391 (2006). Defendants do not dispute that available remedies at law are inadequate. The

12 Court thus only considers the remaining factors.

13

1. Plaintiffs Have Shown They Will Suffer Irreparable Harm Absent a

Permanent Injunction. 14

15

Plaintiffs contend that absent an order permanently enjoining the contemplated border

16 barrier construction in the areas designated El Paso Sector 1, Yuma Sector 1, El Centro Sector,

17 and Tucson Sectors 1–3, its members “will suffer irreparable harm to their recreational and

18 aesthetic interests.” Mot. at 20–22. The Court agrees and finds that Plaintiffs have shown that

19 they will suffer irreparable harm to their members’ aesthetic and recreational interests in the

20 identified areas absent injunctive relief. As the Court previously noted, it is well-established in the

21 Ninth Circuit that an organization can demonstrate irreparable harm by showing that the

22 challenged action will injure its members’ enjoyment of public land. See PI Order at 49. And

23 Plaintiffs here provide declarations from their members detailing how Defendants’ proposed use

24 of funds reprogrammed under Sections 8005 and 9002 will harm their ability to recreate in and

25 otherwise enjoy public land along the border. See Pls.’ Mot. at 21–22 (citing Dkt. No. 168-1 Ex. 1

26 (Bevins Decl.) ¶ 7; id. Ex. 2 (Del Val Decl.) ¶¶ 9–10; id. Ex. 3 (Bixby Decl.) ¶ 6; id. Ex. 4 (Munro

27 Decl.) ¶¶ 9, 11; id. Ex. 5 (Walsh Decl.) ¶¶ 12, 15; id. Ex. 6 (Evans Decl.) ¶ 8; id. Ex. 7 (Armenta

28 Decl.) ¶¶ 6–8; id. Ex. 8 (Ramirez Decl.) ¶¶ 5, 8; id. Ex. 9 (Hartmann Decl.) ¶¶ 8, 9; id. Ex. 10 6

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 7 of 11

United States District Court Northern District of California

1 (Hudson Decl.) ¶¶ 10–11; id. Ex. 11 (Dahl Decl.) ¶ 8; id. Ex. 13 (Gerrodette Decl.) ¶¶ 6, 8; id. Ex.

2 14 (Case Decl.) ¶¶ 10–12; id. Ex. 17 (Tuell Decl.) ¶¶ 7, 10; Ex. 18 (Ardovino Decl.) ¶ 6).

3

Defendants do not contest the truthfulness of Plaintiffs’ declarants’ assertions that the

4 challenged border barrier construction will harm their recreational interests. Defendants instead

5 contend that Plaintiffs’ alleged recreational harms are insufficient because even with the proposed

6 border barrier construction, Plaintiffs’ members have plenty of other space to enjoy. See Defs.’

7 Mot. at 21–22. In their words, border barrier construction “will not impact land uses in the

8 thousands of acres surrounding the limited project areas, where the forms of recreation Plaintiffs

9 enjoy will remain possible.” Id. at 22. Defendants’ argument—unsupported by any case law—

10 proves too much. See All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)

11 (holding this argument’s “logical extension is that a plaintiff can never suffer irreparable injury

12 resulting from environmental harm in [one] area as long as there are other areas [] that are not

13 harmed”). Given that Plaintiffs’ declarants’ characterization of the harm they will suffer is

14 undisputed as a factual matter, the result under Ninth Circuit law is that Plaintiffs have shown they

15 will suffer irreparable harm absent a permanent injunction.

16

2. Balance of Hardships and Public Interest Support a Permanent

Injunction 17

18

The parties agree that the Court should consider the balance of the equities and public

19 interest factors together, because the government is a party to the case. See Pls.’ Mot. at 22; Defs.’

20 Mot. at 23–24; see also Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). As

21 they did at the preliminary injunction stage, Defendants here contend that these factors tilt in their

22 favor because the Government has a strong interest in border security. Defs.’ Br. at 23.

23 Defendants also contend that an injunction would “permanently deprive DoD of its authorization

24 to use the funds at issue to complete the projects, because the funding will lapse at the end of the

25 fiscal year” and that DoD will “incur unrecoverable fees and penalties” while construction is

26 suspended. Id. at 23–24.

27

As the Court explained in its preliminary injunction order, the Ninth Circuit has recognized

28 that “the public has a ‘weighty’ interest ‘in efficient administration of the immigration laws at the 7

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 8 of 11

United States District Court Northern District of California

1 border,’” and the Court does not minimize this interest. See E. Bay Sanctuary Covenant v. Trump,

2 909 F.3d 1219, 1255 (9th Cir. 2018) (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)). But

3 “the public also has an interest in ensuring that statutes enacted by their representatives are not

4 imperiled by executive fiat.” Id. (internal quotation marks and brackets omitted). And the Court

5 notes that Congress considered all of Defendants’ proffered needs for border barrier construction,

6 weighed the public interest in such construction against Defendants’ request for taxpayer money,

7 and struck what it considered to be the proper balance—in the public’s interest—by making

8 available only $1.375 billion in funding, which was for certain border barrier construction not at

9 issue here. See Consolidated Appropriations Act of 2019, Pub. L. No. 116-6, § 230(a)(1), 133

10 Stat. 13, 28 (2019). Most important, Defendants overlook that these factors are informed by the

11 Court’s finding that Defendants do not have the purported statutory authority to reprogram and use

12 funds for the planned border barrier construction. Absent such authority, Defendants’ position on

13 these factors boils down to an argument that the Court should not enjoin conduct found to be

14 unlawful because the ends justify the means. No case supports this principle.

15

Because the Court finds Defendants’ proposed use of funds reprogrammed under Sections

16 8005 and 9002 unlawful, the Court finds that the balance of hardships and public interest favors

17 Plaintiffs, and counsels in favor of a permanent injunction.

18

C. Certification for Appeal

19

Finally, Defendants request that the Court certify this judgment for appeal under Rule

20 54(b). Appellate courts generally only have jurisdiction to hear appeals from final orders. See 28

21 U.S.C. § 1291. Rule 54(b) allows for a narrow exception to this final judgment rule, permitting

22 courts to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties

23 only if the court expressly determines that there is no just reason for delay.” Entry of judgment

24 under Rule 54(b) thus requires: (1) a final judgment; and (2) a determination that there is no just

25 reason for delay of entry. See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 574 (9th Cir.

26 2018) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7–8 (1980)).

27

1. Finality of Judgment

28

A final judgment is “a decision upon a cognizable claim for relief” that is “an ultimate

8

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 9 of 11

United States District Court Northern District of California

1 disposition of an individual claim entered in the course of a multiple claims action.” Curtiss-

2 Wright Corp., 446 U.S. at 7 (citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956)). The

3 Court finds this requirement satisfied because the Court’s award of partial summary judgment in

4 this order is “an ultimate disposition” of Plaintiffs’ claims related to Defendants’ purported

5 reliance on Sections 8005, 9002, and 284 for border barrier construction.

6

2. No Just Reason for Delay

7

As the Ninth Circuit has explained, “[j]udgments under Rule 54(b) must be reserved for

8 the unusual case in which the costs and risks of multiplying the number of proceedings and of

9 overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early

10 and separate judgment as to some claims or parties.” Morrison-Knudsen Co. v. Archer, 655 F.2d

11 962, 965 (9th Cir. 1981). Accordingly, an explanation of findings “should include a determination

12 whether, upon any review of the judgment entered under the rule, the appellate court will be

13 required to address legal or factual issues that are similar to those contained in the claims still

14 pending before the trial court.” Id. at 965. “The greater the overlap the greater the chance that

15 [the Court of Appeals] will have to revisit the same facts—spun only slightly differently—in a

16 successive appeal.” Wood v. GCC Bend, LLC, 422 F.3d 873, 882 (9th Cir. 2005). “[P]lainly,

17 sound judicial administration does not require that Rule 54(b) requests be granted routinely.” Id.

18 at 879 (internal quotation marks omitted).

19

The Court finds there is no just reason for delay under the circumstances. In their motion,

20 Defendants contend that “[t]he legal and factual issues do not ‘intersect and overlap’ with the

21 outstanding claims in this case, which focus on separate statutory authorities, and final judgment

22 on these claims will not result in piecemeal appeals on the same sets of facts.” Defs.’ Mot. at 25.

23 The Court agrees. Whether Defendants’ actions comport with the statutory requirements of

24 Sections 8005 and 9002 and whether Defendants’ actions comport with the remaining statutory

25 requirements related to outstanding claims are distinct inquiries, largely based on distinct law.

26 The Court also recognizes that Defendants’ appeal of the Court’s preliminary injunction order is

27 currently pending before the Court of Appeals, which recently issued an order holding the briefing

28 on that appeal in abeyance pending this order. See Sierra Club v. Trump, No. 19-16102 (9th Cir. 9

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 10 of 11

United States District Court Northern District of California

1 2019), ECF Nos. 65–66. This suggests to the Court that the Court of Appeals agrees that “sound

2 judicial administration” is best served by the Court certifying this judgment for appeal, in light of

3 the undisputedly significant interests at stake in this case. See Wood, 422 F.3d at 879.

4 III. CONCLUSION

5

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

6 Plaintiffs’ motion for partial summary judgment and DENIES Defendants’ motion for partial

7 summary judgment. Specifically, the Court GRANTS Plaintiffs’ request for declaratory judgment

8 that Defendants’ intended use of funds reprogrammed under Sections 8005 and 9002 of the

9 Department of Defense Appropriations Act, 2019, for border barrier construction in El Paso Sector

10 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1–3, is unlawful. The Court DENIES

11 Plaintiffs’ request for declaratory judgment concerning Defendants’ (1) invocation of Sections

12 8005 and 9002 beyond these sectors, (2) invocation of Section 284, and (3) compliance with

13 NEPA.

14

The terms of the permanent injunction are as follows7: Defendants Mark T. Esper, in his

15 official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as

16 Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary

17 of the Department of the Treasury, and all persons acting under their direction, are enjoined from

18 taking any action to construct a border barrier in the areas Defendants have identified as El Paso

19 Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1–3 using funds reprogrammed by

20 DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019.

21

The Clerk is directed to enter final judgment in favor of Plaintiffs and against Defendants

22 with respect to Defendants’ purported reliance on Sections 8005, 9002, and 284 to fund border

23 barrier construction. This judgment will be certified for immediate appeal pursuant to Rule 54(b)

24 of the Federal Rules of Civil Procedure.

25 //

26 //

27

28

7 The Court finds that an injunction against the President personally is not warranted here. See Cty. of Santa Clara, 250 F. Supp. 3d at 549–40.

10

Case 4:19-cv-00892-HSG Document 185 Filed 06/28/19 Page 11 of 11

United States District Court Northern District of California

1

Last, for these reasons and those set out in the Court’s May 30, 2019 order, the Court

2 declines Defendants’ request to stay the injunction pending appeal. See Dkt. No. 152.

3

IT IS SO ORDERED.

4 Dated: 6/28/2019

5

6

7

HAYWOOD S. GILLIAM, JR. United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 11

 
 CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee11ooff8822

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; MARK T. ESPER, in his official capacity as Secretary of the Defense; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the Department of the Treasury,
Defendants-Appellants.

Nos. 19-16102 19-16300
D.C. No. 4:19-cv-00892-
HSG
OPINION

Appeal from the United States District Court for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted November 12, 2019 San Francisco, California
Filed June 26, 2020

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee22ooff8822

2

SIERRA CLUB V. TRUMP

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges.

Opinion by Chief Judge Thomas; Dissent by Judge Collins

SUMMARY*

Appropriations
The panel affirmed the district court’s judgment in an action brought by the Sierra Club and the Southern Border Communities Coalition (collectively the “Sierra Club”) challenging the Department of Defense’s budgetary transfers to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona.
At issue is whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 (“Section 8005”) authorized the budgetary transfers to fund construction of the wall.
The panel held that the Sierra Club had Article III standing to pursue its claims. Specifically, the panel held that Sierra Club’s thousands of members live near and frequently visit areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities; and construction of a border wall and related infrastructure will acutely injure these
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee33ooff8822

SIERRA CLUB V. TRUMP

3

interests because the Department of Homeland Security is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests. Additionally, the interests of Sierra Club’s members in the lawsuit are germane to the organization’s purpose. Similarly, the panel held that the Southern Border Communities Coalition alleged facts that support that it had standing to sue on behalf of itself and its member organizations. The panel further held that Sierra Club’s injuries were fairly traceable to the Section 8005 transfers. In addition, the panel held that the injury to Sierra Club members and Southern Border Communities Coalition was likely to be redressed by a favorable judicial decision.

In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here.

The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful.

The panel held that the Sierra Club was a proper party to challenge the Section 8005 transfers, and concluded that Sierra Club had both a constitutional and an ultra vires cause of action. First, the panel held that where plaintiffs, like Sierra Club, establish that they satisfy the requirements of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee44ooff8822

4

SIERRA CLUB V. TRUMP

Article III standing, they may invoke separation of powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority. Because the federal defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, the panel held that Sierra Club had a constitutional cause of action. Second, the panel held that the Sierra Club had an equitable ultra vires cause of action to challenge the Department of Defense’s transfer of funds. Where it is alleged that the Department of Defense has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.

The panel rejected the federal defendants’ additional arguments. First, the federal defendants asserted that Sierra Club’s challenge must be construed as an Administrative Procedure Act (“APA”) claim, rather than as a constitutional or ultra vivres cause of action. The panel held that the APA is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action. Second, the federal defendants asserted that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. The panel held that Sierra Club fell within the Appropriations Clause’s zone of interests. The unconstitutional transfer of funds here infringed upon Sierra Club’s members’ liberty interests, harming their environmental, aesthetic, and recreational interests. The panel concluded that the Sierra Club had a cause of action to challenge the transfers.

Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee55ooff8822

SIERRA CLUB V. TRUMP

5

enjoining the federal defendants from spending the funds at issue. First, the panel agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. Second, the panel agreed with the district court that the balance of equities and the public interest favored injunctive relief. The panel held that the Supreme Court’s decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), did not require the panel to vacate the injunction.

Judge Collins dissented. He agreed that at least the Sierra Club established Article III standing, but in his view the organizations lacked any cause of action to challenge the transfers. Even assuming that they had a cause of action Judge Collins would conclude that the transfers were lawful. Accordingly, he would reverse the district court’s partial summary judgment for the organizations and remand for an entry of partial summary judgment in favor of the defendants.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee66ooff8822

6

SIERRA CLUB V. TRUMP

COUNSEL

H. Thomas Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan and James M. Burnham, Deputy Assistant Attorneys General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina Shamsi, and Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Mollie M. Lee and Christine P. Sun, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; David Donatti and Andre I. Segura, American Civil Liberties Union Foundation of Texas, Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra Club Environmental Law Program, Oakland, California; for Plaintiffs-Appellees.

Douglas N. Letter (argued), Todd B. Tatelman, Megan Barbero, Josephine Morse, and Kristin A. Shapiro, United States House of Representatives, Washington, D.C.; Carter G. Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae United States House of Representatives.

James F. Zahradka II (argued), Brian J. Bilford, Sparsh S. Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M. Smith, Deputy Attorneys General; Michael P. Cayaban, Christine Chuang, and Edward H. Ochoa, Supervising Deputy Attorneys General; Robert W. Byrne, Sally Magnani, and Michael L. Newman, Senior Assistant Attorneys General;

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee77ooff8822

SIERRA CLUB V. TRUMP

7

Xavier Becerra, Attorney General; Attorney General’s Office, Oakland, California; Jennie Lusk, Civil Rights Bureau Chief; Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas, Chief Deputy Attorney General; Hector Balderas, Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Amici Curiae States of California and New Mexico.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C.; Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae United States Representative Andy Barr.

John W. Howard, George R. Wentz Jr., Richard Seamon, and D. Colton Boyles, Davillier Law Group LLC, Sandpoint, Idaho, for Amicus Curiae State of Arizona House of Representatives Federal Relations Committee.

Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri; Michael J. O’Neill and Matthew C. Forys, Landmark Legal Foundation, Leesburg, Virginia; for Amici Curiae Angel Families, Sabine Durden, Don Rosenberg, Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen Laquerre, Dennis Bixby, and Advocates for Victims of Illegal Alien Crimes.

Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amici Curiae Former Members of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Federal Courts Scholars.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee88ooff8822

8

SIERRA CLUB V. TRUMP

Steven A. Zalesin, Adeel A. Mangi, and Amir Badat, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Kathleen R. Hartnett, Boies Schiller Flexner LLP, San Francisco, California; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Former United States Government Officials.

Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney General, Tohono O’Odham Nation, Sells, Arizona; for Amicus Brief Tohono O’Odham Nation.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee99ooff8822

SIERRA CLUB V. TRUMP

9

OPINION

THOMAS, Chief Judge:

We consider in this appeal challenges by the Sierra Club and the Southern Border Communities Coalition (“SBCC”)1 to the Department of Defense’s budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona. Specifically, we consider whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) (“Section 8005”)2 authorized the budgetary transfers. In a companion appeal, State of California, et al. v. Trump et al., Nos. 19-16299 and 19-16336, we considered similar challenges filed by a collective group of States. However, because Sierra Club asserts different legal theories, and this case, when presented, was in a different procedural posture, we treat this appeal separately. We conclude that the transfers were not authorized, and that plaintiffs have a cause of action. We affirm the judgment of the district court.

1 We refer throughout this opinion to Sierra Club and SBCC together as “Sierra Club,” unless otherwise noted.
2 For simplicity, because the transfer authorities are both subject to Section 8005’s substantive requirements, this opinion refers to these authorities collectively as Section 8005, as did the district court and the motions panel. Our holding in this case therefore extends to both the transfer of funds pursuant to Section 8005 and Section 9002.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1100ooff8822

10

SIERRA CLUB V. TRUMP

I

We recounted the essential underlying facts in the companion case. However, we briefly outline them here for convenience of reference.

The President has long supported the construction of a border wall on the southern border between the United States and Mexico. Since the President took office in 2017, however, Congress has repeatedly declined to provide the amount of funding requested by the President.

The debate over border wall funding came to a head in December of 2018. During negotiations to pass an appropriations bill for the remainder of the fiscal year, the President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction. On January 6, 2019, the White House requested $5.7 billion to fund the construction of approximately 234 miles of new physical barrier.3 Budget negotiations concerning border wall funding reached an impasse, triggering the longest partial government shutdown in United States history.

After 35 days, the government shutdown ended without an agreement to provide increased border wall funding in the amount requested by the President. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 (“CAA”), which included the Department of Homeland Security Appropriations Act for Fiscal Year 2019, Pub. L.

3 Some form of a physical barrier already exists at the site of some of the construction projects. In those places, construction would reinforce or rebuild the existing portions.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1111ooff8822

SIERRA CLUB V. TRUMP

11

No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated only $1.375 billion for border wall construction, specifying that the funding was for “the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.” Id. § 230(a)(1). The President signed the CAA into law the following day.

The President concurrently issued a proclamation under the National Emergencies Act, 50 U.S.C. §§ 1601–1651, “declar[ing] that a national emergency exists at the southern border of the United States.” Proclamation No. 9,844, 84 Fed. Reg. 4949 (Feb. 15, 2019).4 An accompanying White House Fact Sheet explained that the President was “using his legal authority to take Executive action to secure additional resources” to build a border wall, and it specified that “the Administration [had] so far identified up to $8.1 billion that [would] be available to build the border wall once a national emergency [was] declared and additional funds [were] reprogrammed.” The Fact Sheet identified several funding sources, including $2.5 billion of Department of Defense (“DoD”) funds that could be transferred to provide support for counterdrug activities of other federal government agencies under 10 U.S.C. § 284 (“Section 284”).5 Executive

4 Subsequently, Congress adopted two joint resolutions terminating the President’s emergency declaration pursuant to its authority under 50 U.S.C. § 1622(a)(1). The President vetoed each resolution, and Congress failed to override these vetoes.
5 Section 284 authorizes the Secretary of Defense to “provide support for the counterdrug activities . . . of any other department or agency of the Federal Government” if it receives a request from “the official who has responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a), 284(a)(1)(A). The statute permits, among other things, support for “[c]onstruction of roads and fences and installation of lighting to block

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1122ooff8822

12

SIERRA CLUB V. TRUMP

Branch agencies began using the funds identified by the Fact Sheet to fund border wall construction. On February 25, the Department of Homeland Security (“DHS”) submitted to DoD a request for Section 284 assistance to block drug smuggling corridors. In particular, it requested that DoD fund “approximately 218 miles” of wall using this authority, comprised of numerous projects. On March 25, Acting Secretary of Defense Patrick Shanahan approved three border wall construction projects: Yuma Sector Projects 1 and 2 in Arizona and El Paso Sector Project 1 in New Mexico. On May 9, Shanahan approved four more border wall construction projects: El Centro Sector Project 1 in California and Tucson Sector Projects 1–3 in Arizona.

At the time Shanahan authorized Section 284 support for these border wall construction projects, the counter-narcotics support account contained only $238,306,000 in unobligated funds, or less than one tenth of the $2.5 billion needed to complete those projects. To provide the support requested, Shanahan invoked the budgetary transfer authority found in Section 8005 of the 2019 DoD Appropriations Act to transfer funds from other DoD appropriations accounts into the Section 284 Drug Interdiction and Counter-Drug ActivitiesDefense appropriations account.

For the first set of projects, Shanahan transferred $1 billion from Army personnel funds. For the second set of projects, Shanahan transferred $1.5 billion from “various excess appropriations,” which contained funds originally

drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7). DoD’s provision of support for other agencies pursuant to Section 284 does not require the declaration of a national emergency.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1133ooff8822

SIERRA CLUB V. TRUMP

13

appropriated for purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.

As authority for the transfers, DoD invoked Section 8005, which provides, in relevant part that:

Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.6

Section 8005 also explicitly limits when its authority can be invoked: “Provided, That such authority to transfer may

6 The other authority invoked by the Federal Defendants, Section 9002 provides that: “Upon the determination of the Secretary of Defense that such action is necessary in the national interest, the Secretary may, with the approval of the Office of Management and Budget, transfer up to $2,000,000,000 between the appropriations or funds made available to the Department of Defense in this title: Provided, That the Secretary shall notify the Congress promptly of each transfer made pursuant to the authority in this section: Provided further, That the authority provided in this section is in addition to any other transfer authority available to the Department of Defense and is subject to the same terms and conditions as the authority provided in section 8005 of this Act.”

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1144ooff8822

14

SIERRA CLUB V. TRUMP

not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”

Although Section 8005 does not require formal congressional approval of transfers, historically DoD had adhered to a “gentleman’s agreement,” by which it sought approval from the relevant congressional committees before transferring the funds. DoD deviated from this practice here—it did not request congressional approval before authorizing the transfer. Further, the House Committee on Armed Services and the House Committee on Appropriations both wrote letters to DoD formally disapproving of the reprogramming action after the fact. Moreover, with respect to the second transfer, Shanahan expressly directed that the transfer of funds was to occur “without regard to comitybased policies that require prior approval from congressional committees.”

In the end, Section 8005 was invoked to transfer $2.5 billion of DoD funds appropriated for other purposes to fund border wall construction.

II

On February 19, 2019, Sierra Club filed a lawsuit
challenging the Executive Branch’s funding of the border wall.7 Sierra Club pled theories of violation of the 2019

7 California, New Mexico, and fourteen other states had filed a lawsuit the previous day challenging the same border wall funding. Both lawsuits named as defendants Donald J. Trump, President of the United States, Patrick M. Shanahan, former Acting Secretary of Defense, Kirstjen

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1155ooff8822

SIERRA CLUB V. TRUMP

15

CAA, violation of the constitutional separation of powers, violation of the Appropriations Clause, violation of the Presentment Clause, violation of the National Environmental Policy Act (“NEPA”), and ultra vires action.

Sierra Club subsequently filed a motion requesting a preliminary injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona’s Yuma Sector and New Mexico’s El Paso Sector. The district court held that Sierra Club had standing to assert its Section 8005 claims, and granted the preliminary injunction motion. The Federal Defendants timely appealed the preliminary injunction order. Sierra Club subsequently sought a supplemental preliminary injunction to block additional construction planned in California’s El Centro Sector and Arizona’s Tucson Sector.

Sierra Club also filed a motion requesting partial summary judgment, a declaratory judgment, and a permanent injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona’s Yuma and Tucson Sectors, California’s El Centro Sector, and New Mexico’s El Paso Sector. The Federal Defendants crossmoved for summary judgment and opposed Sierra Club’s motion. The district court granted Sierra Club’s motion for partial summary judgment and granted its request for a declaratory judgment and a permanent injunction. The Federal Defendants requested that the district court certify the judgment for appeal under Fed. R. Civ. P. 54(b). The district

M. Nielsen, former Secretary of Homeland Security, and Steven Mnuchin, Acting Secretary of the Treasury in their official capacities, along with numerous other Executive Branch officials (collectively referenced as “the Federal Defendants”).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1166ooff8822

16

SIERRA CLUB V. TRUMP

court considered the appropriate factors, made appropriate findings, and certified the order as final pursuant to Rule 54(b). See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 574–75 (9th Cir. 2018) (explaining when certification is appropriate under Rule 54). The Federal Defendants timely appealed the district court decision.

The Federal Defendants initially filed a motion to stay the district court’s preliminary injunction, and in their later briefing on summary judgment, they requested that the district court stay any permanent injunction granted pending appeal. The district court denied both requests. The Federal Defendants filed an emergency motion for stay of the preliminary injunction pending appeal in this Court and subsequently sought a stay of the permanent injunction, relying on the same arguments. Sierra Club v. Trump, 929 F.3d 670, 685 (9th Cir. 2019). An emergency motions panel of this Court considered whether to stay the injunction pending appeal, and held that a stay was not warranted. Id. at 677. The Federal Defendants then filed an application for a stay pending appeal with the Supreme Court. The Supreme Court granted the application, noting that “[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.).

We now consider the merits of the Federal Defendants’ appeal of the district court’s grant of partial summary judgment, grant of a declaratory judgment, and grant of a

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1177ooff8822

SIERRA CLUB V. TRUMP

17

permanent injunction to Sierra Club.8 We review the existence of Article III standing de novo. See California v. U.S. Dep’t of Health & Human Servs., 941 F.3d 410, 420 (9th Cir. 2019). We review questions of statutory interpretation de novo. See United States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017).

III

Sierra Club has Article III standing to pursue its claims. To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).9 An organization has standing to sue on behalf of its members when “its members would otherwise have standing to sue in their own right,” and when “the interests it seeks to protect are germane to the organization’s purpose.” United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert.

8 We dismiss the Federal Defendants’ appeal of the district court’s grant of the preliminary injunction as moot. See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 963 (9th Cir. 2013) (“The district court’s entry of final judgment and a permanent injunction moots Arizona’s appeal of the preliminary injunction.”); see also Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 949–50 (9th Cir. 1983); SEC v. Mount Vernon Mem’l Park, 664 F.2d 1358, 1361–62 (9th Cir. 1982).
9 The Federal Defendants do not challenge Sierra Club’s Article III standing in these appeals. However, “the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1188ooff8822

18

SIERRA CLUB V. TRUMP

Comm’n, 434 U.S. 333, 343 (1977)).10 An organization has standing to sue on its own behalf when it suffers “both a diversion of its resources and a frustration of its mission.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (quoting Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). It must “show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. At summary judgment, a plaintiff cannot rest on mere allegations, but “must set forth by affidavit or other evidence specific facts.” Clapper v. Amnesty Int’l. USA, 568 U.S. 398, 412 (2013) (quotations and citation omitted). However, these specific facts “for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561.

Here, Sierra Club and SBCC have alleged facts that support their standing to sue on behalf of their members. Sierra Club has alleged that the actions of the Federal Defendants will cause particularized and concrete injuries to its members, and SBCC has shown that it has suffered a concrete injury itself.

Sierra Club has more than 400,000 members in California, over 9,700 of whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon Chapter, which covers

10 United Food and Commercial Workers held that those two requirements were based on constitutional demands, but held that the third prong of Hunt’s test for organizational standing, whether the claim or relief requested requires the participation of individual members in the lawsuit, was prudential only. Id. at 555. In any case, because the claim and relief requested here do not require the participation of Sierra Club or SBCC members, even this prudential consideration supports plaintiffs’ standing here.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1199ooff8822

SIERRA CLUB V. TRUMP

19

the State of Arizona, has more than 16,000 members. Sierra Club’s Rio Grande Chapter includes over 10,000 members in New Mexico and West Texas. These members visit border areas such as the Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness Area (California), the Sonoran Desert (Arizona), Cabeza Prieta National Wildlife Refuge (Arizona), and the Chihuahan Desert (New Mexico).

Sierra Club’s thousands of members live near and frequently visit these areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities. They obtain recreational, professional, scientific, educational, and aesthetic benefits from their activities in these areas, and from the wildlife dependent upon the habitat in these areas. The construction of a border wall and related infrastructure will acutely injure these interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests.

Sierra Club has adequately set forth facts and other evidence by declaration, which taken as true, support these allegations for the purpose of Article III standing.

Sierra Club members Orson Bevins and Albert Del Val have alleged that they will be injured by construction of Yuma Project 1. Bevins avers that he visits the area several times per year and is concerned that the wall “would disrupt the desert views and inhibit [him] from fully appreciating [the] area,” and that the additional presence of U.S. Customs and Border Protection agents “would further diminish[] [his] enjoyment of these areas” and “deter[] [him] from further

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2200ooff8822

20

SIERRA CLUB V. TRUMP

exploring certain areas.” Del Val worries that “construction and maintenance of the border wall will limit or entirely cut off [his] access to [] fishing spots” along the border, where he has fished for more than 50 years.

Sierra Club member Elizabeth Walsh has alleged that construction of El Paso Sector Project 1 would injure her because “[a]s part of [her] professional and academic work [she] routinely visit[s] and stud[ies]” the area where the project would be built to “supervise several ongoing and long-term biology studies in this area with graduate students on the aquatic diversity of ephemeral wetlands known locally as playas.” Among other things, she is worried that border wall construction would “negatively impact the scientific playa studies . . . because a wall could impede vital natural drainage patterns for the playas.”

Sierra Club member Carmina Ramirez has alleged that she “will be harmed culturally and aesthetically” if El Centro Sector Project 1 is built because she has spent her entire life in the area surrounding the U.S.-Mexico Border, including the El Centro Sector, and she believes that border wall construction would “drastically impact [her] ability to enjoy the local natural environment,” because she would “see a high border wall instead of [the] beautiful landscape,” and “drastically impact [her] cultural identity by fragmenting [her] community.” Construction will make her “less likely to hike Mount Signal and enjoy outdoor recreational activities; and when [she does] undertake those activities, [her] enjoyment of them will be irreparably diminished.”

Sierra Club member Ralph Hudson “recreat[es] in the wilderness areas along the U.S.-Mexico border” in the area referred to as the Tucson Sector and has done so for 20 years.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2211ooff8822

SIERRA CLUB V. TRUMP

21

He uses the land “to hike, take photos, and explore the natural history.” He is “extremely concerned that Tucson Projects 1 and 2 will greatly detract from [his] ability to enjoy hiking, camping, and photographing these landscapes.”

Sierra Club member Margaret Case lives a few miles from the border, and she asserts that she will be injured by the construction of Tucson Sector Project 3. “With each increase and escalation in enforcement along the border, [her] and other border residents’ quality of life decreases” and “[t]he proposed wall will . . . extend an already unwanted eyesore in the middle of a landscape whose beauty [she] treasure[s], irrevocably harming [her] enjoyment of that landscape.”

Additionally, the interests of Sierra Club’s members in this lawsuit are germane to the organization’s purpose. Sierra Club is a national organization “dedicated to exploring, enjoying, and protecting the wild places of the earth; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives.” Sierra Club’s organizational purpose is at the heart of this lawsuit, and it easily satisfies this secondary requirement.

SBCC has also alleged facts that support that it has standing to sue on behalf of itself and its member organizations. SBCC alleged that since the Federal Defendants proposed border wall construction, it has had to “mobilize[] its staff and its affiliates to monitor and respond to the diversion of funds and the construction caused by and accompanying the national emergency declaration.” These “activities have consumed the majority of SBCC staff’s time, thereby interfering with SBCC’s core advocacy regarding border militarization, Border Patrol law-enforcement

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2222ooff8822

22

SIERRA CLUB V. TRUMP

activities, and immigration reform,” but it has had no choice because it “must take these actions in furtherance of its mission to protect and improve the quality of life in border communities.”

SBCC Director Vicki Gaubeca confirms these allegations. She has stated that a “border wall, as a physical structure and symbol, is contrary to the goals of SBCC and the needs of border communities.” She avers that the “emergency declaration and the threat and reality of construction have caused [SBCC] to reduce the time [it] spend[s] on [its] core projects, including public education about border policies, community engagement on local issues, and affirmative advocacy for Border Patrol accountability and immigration reform.” SBCC and its member organizations have instead “been forced to devote substantial time to analyze and respond to the declaration and the promise to build border walls across the southern border” “at a substantial monetary and opportunity cost.”

These allegations are sufficient to establish that, if funds are transferred to the border wall construction projects, Sierra Club members and SBCC will each suffer injuries in fact.

Sierra Club and SBCC have also shown that such injuries are “fairly traceable to the challenged action of the [Federal Defendants], and [are] not the result of the independent action of some third party not before the court.” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). It makes no difference that the border wall construction is the product of other statutory provisions, such as Section 284, in addition to Section 8005. “Causation may be found even if there are multiple links in the chain connecting the defendant’s unlawful conduct to the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2233ooff8822

SIERRA CLUB V. TRUMP

23

plaintiff’s injury, and there’s no requirement that the defendant’s conduct comprise the last link in the chain.” Id. The Federal Defendants could not build the border wall projects challenged by Sierra Club without invoking Section 8005’s transfer authority—without this authority, there was no money to build these portions of the border wall; therefore, construction is fairly traceable to the Section 8005 transfers.

The injury to Sierra Club members and SBCC is likely to be redressed by a favorable judicial decision. A judicial order prohibiting the Federal Defendants from spending the money transferred pursuant to Section 8005 would stop construction, thereby preventing the harm alleged by Plaintiffs. Thus, Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants’ actions.

IV

First, we consider whether Section 8005 or any constitutional provision authorized DoD to transfer the funds at issue. We hold they did not.

A

Section 8005 provides DoD with limited authority to transfer funds between different appropriations accounts, but it provides no such authority “unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” In the opinion filed today in the companion case, State of California, et al. v. Trump, et al., Nos. 19-16299 and

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2244ooff8822

24

SIERRA CLUB V. TRUMP

19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), we hold that Section 8005 did not authorize the transfer of funds at issue here because “the border wall was not an unforeseen military requirement,” and “funding for the wall had been denied by Congress.” We reaffirm this holding here and conclude that Section 8005 did not authorize the transfer of funds.

B

The “straightforward and explicit command” of the Appropriations Clause11 “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (quotation and citation omitted). The Clause is “a bulwark of the Constitution’s separation of powers.” U.S. Dep’t. Of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012); see also United States v. McIntosh, 833 F.3d 1163, 1174–75 (9th Cir. 2016). It “assure[s] that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents.” Office of Pers. Mgmt., 496 U.S. at 427–28. Without it, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.” Id. at 427 (quoting Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)).

Accordingly, “[t]he United States Constitution exclusively grants the power of the purse to Congress, not the

11 “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2255ooff8822

SIERRA CLUB V. TRUMP

25

President.” City and Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018) (citing U.S. Const. art. I, § 9, cl. 7). “[W]hen it comes to spending, the President has none of ‘his own constitutional powers’ to ‘rely’ upon.” Id. at 1233–34 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).

Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. These funds were appropriated for other purposes, and the transfer amounted to “drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” McIntosh, 833 F.3d at 1175.

Therefore, the transfer of funds here was unlawful.

V

All that is left for us to decide, then, is whether Sierra Club is a proper party to challenge the Section 8005 transfers. Sierra Club asserts that it has a number of viable causes of action—including a constitutional cause of action and an ultra vires cause of action—while the Federal Defendants assert that Sierra Club has none.

The Supreme Court stay order suggests that Sierra Club may not be a proper challenger here. See Sierra Club, 140 S. Ct. at 1. We heed the words of the Court, and carefully analyze Sierra Club’s arguments. Having done so, we conclude that Sierra Club has both a constitutional and an ultra vires cause of action.

In reaching this result, we realize that this is a rare case in which the “judiciary may . . . have to intervene in determining

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2266ooff8822

26

SIERRA CLUB V. TRUMP

where the authority lies as between the democratic forces in our scheme of government.” Youngstown, 343 U.S. at 597 (1952) (Frankfurter, J. concurring). In doing so, we remain “wary and humble,” id., for “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” id. at 614. But where, as here, “Congress could not more clearly and emphatically have withheld [the] authority,” id. at 602, exercised by DoD, “with full consciousness of what it was doing and in the light of much recent history,” id., and Sierra Club satisfies the rigors of Article III standing, our “obligation to hear and decide [this] case is virtually unflagging,” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quotations and citation omitted). “All we can do is, to exercise our best judgment, and conscientiously to perform our duty.” Cohens v. State of Virginia, 19 U.S. 264, 404 (1821).

A

First, we consider whether Sierra Club has a constitutional cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Certain provisions of the Constitution give rise to equitable causes of action. Such causes of action are most plainly available with respect to provisions conferring individual rights, such as the Establishment Clause or the Free Exercise Clause. See Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018); Flast v. Cohen, 392 U.S. 83 (1968). But certain structural provisions give rise to causes of action as well. See Nat. Labor Relations. Bd. v. Noel Canning, 573 U.S. 513, 556–57 (2014) (cause of action based on the Recess Appointments Clause); Bond v. United States, 564 U.S. 211, 225–26 (2011) (cause of action based on structural principles

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2277ooff8822

SIERRA CLUB V. TRUMP

27

of federalism); Clinton v. City of New York, 524 U.S. 417, 434–36 (1998) (cause of action based on the Presentment Clause); INS v. Chadha, 462 U.S. 919, 943–44 (1983) (cause of action based on the constitutional requirement of bicameralism and presentment); McIntosh, 833 F.3d at 1174–75 (cause of action based on the Appropriations Clause).

In Bond, the Supreme Court articulated why certain structural constitutional provisions give rise to causes of action. The Court considered “whether a person indicted for violating a federal statute has standing to challenge its validity on the grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.” 564 U.S. at 214. The Court held that “[j]ust as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism.” Id. at 223–24. It reasoned that the challenge was permissible because “structural principles secured by the separation of powers protect the individual as well,” and “[a]n individual has a direct interest in objecting to laws that upset the constitutional balance . . . when the enforcement of those laws causes injury that is concrete, particular, and redressable.” Id. at 222. In other words, an individual who otherwise meets the requirements of Article III standing may challenge government action that violates structural constitutional provisions intended to protect individual liberties.

We have held that the Appropriations Clause contains such a cause of action. See McIntosh, 833 F.3d at 1173–74. In McIntosh, defendants moved to enjoin their prosecutions

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2288ooff8822

28

SIERRA CLUB V. TRUMP

for federal marijuana offenses on the grounds that a congressional appropriations rider prohibited the Department of Justice from spending federal funds on such prosecutions. Id. at 1168. We held that “[the Appropriations Clause] constitutes a separation-of-powers limitation that Appellants can invoke to challenge their prosecutions.” Id. at 1175. The opinion reasoned that so long as a litigant satisfies the Article III standing requirements, he or she can challenge Appropriations Clause violations because “[o]nce Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for . . . the courts to enforce them when enforcement is sought.” Id. at 1172 (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)). In McIntosh, we also reaffirmed the Supreme Court’s statement in Bond that “both federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints ‘[w]hen government acts in excess of its lawful powers.’” Id. at 1174 (quoting Bond, 564 U.S. at 222).12

The cause of action available to the plaintiffs in McIntosh is available to Sierra Club here. Congress decided the order of priorities for border security. In doing so, it chose to allocate $1.375 billion to fund the construction of pedestrian

12 The Federal Defendants incorrectly characterize McIntosh’s constitutional holding as dicta. The McIntosh Court discussed the availability of a constitutional cause of action, analogizing to Bond and Canning, and stating that “Appellants have standing to invoke separationof-powers provisions of the Constitution to challenge their criminal convictions.” 833 F.3d at 1174. Because the Court “confront[ed] an issue germane to the eventual resolution of the case,” and “resolve[d] it after reasoned consideration in a published opinion,” McIntosh’s constitutional holding is “the law of the circuit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quotations and citation omitted).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2299ooff8822

SIERRA CLUB V. TRUMP

29

fencing in Texas. See 2019 CAA § 230(a)(1). It declined to provide additional funding for projects in other areas, and it declined to provide the full $5.7 billion sought by the President: it is for the courts to enforce Congress’s priorities, and we do so here. Where plaintiffs, like Sierra Club, establish that they satisfy the requirements of Article III standing, they may invoke separation-of-powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority.

The Federal Defendants argue that Dalton v. Specter, 511 U.S. 462 (1994) forecloses this result. They assert that Dalton’s proposition that not “every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution,” means that when there is a claim that an Executive Branch official acted in excess of his statutory authority, there is no constitutional violation. Id. at 472. But Dalton does not hold that every action in excess of statutory authority is not a constitutional violation.13 Rather, Dalton suggests that some

13 Notably, the plaintiffs in Dalton never alleged that the President violated the Constitution and sought review “exclusively under the [Administrative Procedure Act (“APA”)].” Id. at 471. Only the Court of Appeals “sought to determine whether non-APA review, based on either common law or constitutional principles, was available.” Id. The Supreme Court did not consider whether the President had violated a specific constitutional prohibition; instead, it took issue only with the Court of Appeals’ contention that “whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-ofpowers doctrine.” Id. The Supreme Court’s objection to this conclusion is unsurprising in the context of the Defense Base Closure and Realignment Act of 1990 at issue in Dalton. The Constitution divides authority with respect to the military between Congress and the President. Here, in contrast, the Constitution delegates exclusively to Congress the power of the purse.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3300ooff8822

30

SIERRA CLUB V. TRUMP

actions in excess of statutory authority may be constitutional violations, while others may not. Specifically, Dalton suggests that a constitutional violation may occur when an officer violates an express prohibition of the Constitution. Id. (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396–97 (1971) for the distinction between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in excess of the authority delegated . . . by the Congress”). The Appropriations Clause contains such a constitutional prohibition, declaring that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art.1, § 9, cl. 7. Under Dalton, then, violations of the Appropriations Clause may give rise to viable causes of action.

Dalton’s discussion of Youngstown only underscores this point. The Court determined that Youngstown could not stand for the proposition “that an action taken by the President in excess of his statutory authority necessarily violates the Constitution” because in Youngstown “no statutory authority was claimed.” Dalton, 511 U.S. at 473 (emphasis added). The Court concluded only that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.” Id. Thus, Dalton and its discussion of Youngstown do not address situations in which the President exceeds his or her statutory authority, and in doing so, also violates a specific constitutional prohibition, as is the case here.

Neither does Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), require an opposite result here. In Armstrong, the Supreme Court rejected the argument that the Supremacy Clause created a private right of action. Id. at 325–27. But the Supremacy Clause is not the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3311ooff8822

SIERRA CLUB V. TRUMP

31

Appropriations Clause: while the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government,” id. at 325 (citing The Federalist No. 33, p. 207 (J. Cooke ed. 1961)), the Appropriations Clause contains an explicit prohibition, which protects individual liberty, because “[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury,” McIntosh, 833 F.3d at 1175. “The individual loses liberty in a real sense if [the appropriations power] is not subject to traditional constitutional constraints.” Clinton v. City of New York, 524 U.S. at 451 (Kennedy, J., concurring). Thus, while it might be “strange” “to give a clause that makes federal law supreme a reading that limits Congress’s power to enforce that law,” Armstrong, 575 U.S. at 326, it is entirely sensible to give a clause that restricts the power of the federal government as a whole a reading that safeguards individual liberty.

Therefore, because the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, we hold that Sierra Club has a constitutional cause of action here.

B

Second, we consider whether Sierra Club has an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Whether Sierra Club can assert an equitable ultra vires cause of action turns on “whether the relief [it] request[s] . . .

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3322ooff8822

32

SIERRA CLUB V. TRUMP

was traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999). Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a “judge-made remedy” for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review. Armstrong, 575 U.S. at 327. “The substantive prerequisites for obtaining an equitable remedy . . . depend on traditional principles of equity jurisdiction.” Grupo Mexicano, 527 U.S. at 318–19 (quotations and citation omitted).

The relief Sierra Club requests has been traditionally available. “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong, 575 U.S. at 327 (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)); see also Harmon v. Brucker, 355 U.S. 579, 581–82 (1958) (“Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers.”). Such causes of action have been traditionally available in American courts: “[w]hen Congress limits its delegation of power, courts infer (unless the statute clearly directs otherwise) that Congress expects this limitation to be judicially enforced.” Dart v. United States, 848 F.2d 217, 223 (D.C. Cir. 1988).

The passage of the APA has not altered this presumption. “Prior to the APA’s enactment . . . courts had recognized the right of judicial review of agency actions that exceeded

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3333ooff8822

SIERRA CLUB V. TRUMP

33

authority,” and “[n]othing in the subsequent enactment of the APA altered [that] doctrine of review,” to “repeal the review of ultra vires actions.” Id. at 224. “When an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Id.

That Sierra Club has a cause of action to enjoin the unconstitutional actions at issue here is best illustrated by Youngstown. There, Congress passed numerous statutes authorizing the President to take personal and real property under specific conditions. 343 U.S. at 585–86. During the Korean War, however, President Truman signed an executive order seizing most of the nation’s steel mills, even though the conditions of the statutes had not been satisfied as a matter of fact. Id. at 582, 586. It fell to the Supreme Court to determine whether the President had constitutional authority to seize the steel mills—it held he did not and affirmed the district court injunction. Id. at 588–589. The Court never questioned that it had the authority to provide the requested relief.

Such is the case here. Section 8005 authorizes DoD to transfer funds under certain conditions; however, as explained previously, DoD failed to satisfy those conditions. Likewise, as explained previously, the Executive Branch lacks independent constitutional authority to fund border wall construction. If an equitable ultra vires action was available to the plaintiffs in Youngstown, it surely must be available to Sierra Club here.

A number of D.C. Circuit cases reaffirm that review is ordinarily available when an agency exceeds its delegation of authority. In Chamber of Commerce of the United States v. Reich, the D.C. Circuit considered whether the Chamber of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3344ooff8822

34

SIERRA CLUB V. TRUMP

Commerce had a cause of action to challenge an executive order barring the federal government from contracting with employers who hire permanent replacements during a lawful strike. 74 F.3d 1322, 1325–26 (D.C. Cir. 1996). The government argued that the Chamber of Commerce lacked a statutory cause of action and that APA review was not available because the challenge was directed at the President’s statutory authority to issue the executive order, and the President is not an agency within the meaning of the APA. See id. The court agreed that APA review was not available, but it held that non-statutory review remained available. See id. at 1327. The court held that “[i]f a plaintiff is unable to bring his case predicated on either a specific or a general statutory review provision, he may still be able to institute a non-statutory review action.” Id. The court reasoned in part that “[t]he responsibility of determining the limits of statutory grants of authority . . . is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.” Id. (quoting Stark v. Wickard, 321 U.S. 288, 310 (1944)).

Likewise, in Dart v. United States, the D.C. Circuit considered whether the plaintiff could challenge the Secretary of Commerce’s decision to impose civil sanctions for a violation of the Export Administration Act (“EAA”). See 848 F.2d at 219. The court held that even though the EAA expressly limited judicial review, the court retained the ability to review whether the Secretary exceeded the authority delegated by the statute. See id. at 223–34. It explained that “the presumption of judicial review is particularly strong where an agency is alleged to have acted beyond its authority.” Id. at 223. It ultimately concluded that the Secretary had done just that and invalidated the sanctions he imposed.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3355ooff8822

SIERRA CLUB V. TRUMP

35

These cases support our holding here that Sierra Club has an equitable ultra vires cause of action to challenge DoD’s transfer of funds. Where it is alleged that DoD has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.

The Federal Defendants contend that an equitable cause of action is not available to Sierra Club here because equitable remedies are available only when they have been “traditionally available in the specific circumstances presented,” and that the remedies sought here have not been traditionally available in the specific circumstances presented by this case.

The Federal Defendants cite Grupo Mexicano in support of this argument, but that case provides little support for their position. In Grupo Mexicano, the Court considered whether a district court had the power to issue a preliminary injunction to prevent the transfer of assets in which no lien or equitable interest was claimed. See 527 U.S. at 318. The Court concluded it did not. See id. at 333. It held that a district court cannot grant relief that “has never been available before—and especially (as here) a type of relief that has been specifically disclaimed by longstanding judicial precedent,” particularly when “there is absolutely nothing new about debtors’ trying to avoid paying their debts, or seeking to favor some creditors over others.” Id. at 322; see id. at 333.

Here, however, the plaintiffs request a type of relief that is consistent with our longstanding precedent. Indeed, as explained above, the Supreme Court has actually granted injunctive relief in circumstances very similar to these. See, e.g., Youngstown, 343 U.S. at 589. Further, unlike attempts

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3366ooff8822

36

SIERRA CLUB V. TRUMP

to avoid paying debts, instances of Executive Branch ultra vires action are, fortunately, relatively rare, and unlikely to occur in contexts likely to repeat themselves precisely. Thus, the justifications for limiting equitable relief in Grupo Mexicano are not present here, and courts are able to grant the relief sought by Sierra Club.

We therefore hold that Sierra Club may assert an equitable ultra vires cause of action to challenge DoD’s transfer of funds.

C

The Federal Defendants raise a number of additional arguments. We address them here.

First, the Federal Defendants assert that Sierra Club’s challenge must be construed as an APA claim, rather than as a constitutional or ultra vires cause of action. But neither of the two cases cited by the Federal Defendants compel this conclusion. The Federal Defendants cite Hoefler v. Babbitt, 139 F.3d 726, 728 (9th Cir. 1998) for the proposition that “[t]he APA is the sole means for challenging the legality of federal agency action,” but there, we did not consider whether plaintiffs had a constitutional or ultra vires cause of action; rather, we considered whether the action was properly considered under the APA or the Quiet Title Act. See id. at 728–29. We ultimately held that the former was appropriate. See id. at 729. To extrapolate from a general statement made in this context, as the Federal Defendants do here, goes too far.

Likewise, in Bennett v. Spear, 520 U.S. 154, 175 (1997), the Court did not consider whether plaintiffs had a

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3377ooff8822

SIERRA CLUB V. TRUMP

37

constitutional cause of action; rather, the Court considered whether the citizen-suit provision of the Endangered Species Act (“ESA”) provided an exclusive statutory remedy, or whether a cause of action was also available under the APA. The Court ultimately determined that “[n]othing in the ESA’s citizen-suit provision expressly precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to do so.” Id. If anything, this case underscores that the APA is not to be construed as an exclusive remedy. Thus, the APA does not displace all constitutional and equitable causes of action.

Second, the Federal Defendants assert that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. We reject this argument.

The zone of interests test limits which plaintiffs can invoke statutorily created causes of action. Although earlier cases, such as Association of Data Processing Services Organizations, Inc. v. Camp, 397 U.S. 150 (1970), suggested that the test applied to constitutional causes of action, the Supreme Court’s most recent zone of interests case, Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), clarifies that the test applies only to statutory causes of action and causes of action under the APA. See id. at 129 (“[T]he modern ‘zone of interests’ formulation originated . . . as a limitation on the cause of action for judicial review conferred by the [APA],” but “[w]e have since made clear, however, that it applies to all statutorily created causes of action.” (emphasis added)).

Common sense supports this approach. As Judge Bork explained in Haitian Refugee Center v. Gracey,

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3388ooff8822

38

SIERRA CLUB V. TRUMP

Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest. For example, were a case like Youngstown, to arise today, the steel mill owners would not be required to show that their interests fell within the zone of interests of the President’s war powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of those powers.

809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (emphasis added). We agree with Judge Bork.14 It would make little sense to

14 While the dissent asserts that we rely on the wrong portion of Judge Bork’s opinion, we disagree. Section 8005 cannot merely be read as a statutory provision limiting the authority conferred when it is simultaneously a statutory power invoked by the President. In any case, as explained below, the relevant limitation here is not the inapplicable statutory power invoked by the Executive—Section 8005—but instead the restriction on unlawful action—the Appropriations Clause. See also Ctr. for Biodiversity v. Trump, No. 1:19-cv-00408, 2020 WL 1643657 at *25 (D.D.C. Apr. 2, 2020) (quoting the same language from Haitian Refugee Center and holding that plaintiffs “thus need not satisfy the zone of interests test for their ultra vires claims.”).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3399ooff8822

SIERRA CLUB V. TRUMP

39

require Sierra Club to demonstrate that it falls within the zone of interests of Section 8005. Congress may not have contemplated the environmental advocacy group when it included Section 8005 in the defense budget, but nevertheless, Sierra Club has asserted a legally cognizable injury. The fact Congress did not have Sierra Club as a particular plaintiff in mind when it authorized Section 8005’s transfer authority does not make its injury less real, nor DoD’s action more lawful.

If the zone of interests test applies at all, the Appropriations Clause of the Constitution defines the zone of interests because it is the “particular provision of law upon which [Sierra Club] relies” in seeking relief. Bennett, 520 U.S. at 175–76. Section 8005 is relevant only because, to the extent it applies, it authorizes executive action that otherwise would be unconstitutional or ultra vires. That a statute is relevant does not transform a constitutional claim into a statutory one. Sierra Club’s cause of action stems from the Federal Defendants’ violation of the Appropriations Clause because it seeks to enforce the limits mandated by the clause.

To the extent the zone of interests test ever applies to constitutional causes of action, it asks only whether a plaintiff is “arguably within the zone of interests to be protected . . . by the . . . constitutional guarantee in question.” Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977) (quoting Data Processing, 397 U.S. at 153). This renders the test nearly superfluous: so long as a litigant is asserting an injury in fact to his or her constitutional rights, he has a cause of action. See ERWIN CHEMERINKSY, FEDERAL JURISDICTION 112 (7th ed. 2016) (citing LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 446 (3d ed. 2000)).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4400ooff8822

40

SIERRA CLUB V. TRUMP

Applying that generous formulation of the test here, Sierra Club falls within the Appropriations Clause’s zone of interests. Here, Sierra Club is an organization within the United States that is protected by the Constitution. The Appropriations Clause is a “bulwark of the Constitution’s separation of powers,” U.S. Dep’t. of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012), and the “separation of powers can serve to safeguard individual liberty,” McIntosh, 833 F.3d at 1174 (quoting Noel Canning, 573 U.S. at 525). The unconstitutional transfer of funds here infringed upon Sierra Club’s members’ liberty interests, harming their environmental, aesthetic, and recreational interests. Thus, Sierra Club falls within the Clause’s zone of interests, and Sierra Club has a cause of action to challenge the transfers.

VI

Finally, we consider whether the district court abused its discretion in granting Sierra Club a permanent injunction enjoining the Federal Defendants from spending the funds at issue. We hold it did not, and we affirm the district court injunction.

A permanent injunction is appropriate when: (1) a plaintiff will suffer an irreparable injury absent injunction, (2) remedies available at law are inadequate,15 (3) the balance of hardships between the parties supports an equitable remedy, and (4) the public interest would not be disserved. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). When the government is a party to the case, the court should consider the balance of hardships and public interests factors

15 The parties do not contest this factor and so we do not address it.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4411ooff8822

SIERRA CLUB V. TRUMP

41

together. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Although injunctive relief “does not follow from success on the merits as a matter of course,” Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008), we review a district court’s decision to grant a permanent injunction for abuse of discretion, see eBay, 547 U.S. at 391.

The district court did not abuse its discretion in weighing these factors and determining that injunctive relief was warranted. First, we agree with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. An organization can demonstrate irreparable harm by showing that the challenged action will injure its members’ enjoyment of public lands. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (finding irreparable harm when the Forest Service’s proposed project would harm the Alliance’s members’ ability to “view, experience, and utilize” national forest areas in an undisturbed state). We conclude that Sierra Club sufficiently demonstrated that the Federal Defendants’ proposed use of funds would harm its members ability to recreate and enjoy public lands along the border such that it will suffer irreparable harm absent injunction.

The Federal Defendants’ arguments to the contrary are unpersuasive. The Federal Defendants submit that Sierra Club will not be irreparably harmed because its members have plenty of other space to enjoy. We have already rejected the essence of the Federal Defendants’ argument. See All. for the Wild Rockies, 632 F.3d at 1135 (concluding that the Forest Service’s argument that plaintiffs can “view, experience, and utilize other areas of the forest” “proves too much,” because its logical extension is that a “plaintiff can never suffer irreparable injury resulting from environmental

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4422ooff8822

42

SIERRA CLUB V. TRUMP

harm in a forest as long as there are other areas of the forest that are not harmed” (internal citations omitted)).

Moreover, we agree with the district court that the balance of equities and the public interest favor injunctive relief here. The public has an important interest in “ensuring that statutes enacted by their representatives are not imperiled by executive fiat.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quotations and citation omitted). By passing the CAA, Congress made a calculated choice to fund only one segment of border barrier. The public interest favors enforcing this decision. In contrast, the Federal Defendants cannot suffer harm “from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (citing Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“[T]he INS cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations.”)). We agree with the district court that the Federal Defendants’ position essentially “boils down to an argument that the Court should not enjoin conduct found to be unlawful because the ends justify the means.” No matter how great the collateral benefits of building a border wall may be, the transfer of funds for construction remains unlawful. The equitable maxim “he who comes in equity must come with clean hands” would be turned on its head if unlawful conduct by one party precluded a court from granting equitable relief to the opposing party. The district court properly concluded that the balance of equities and the public interest favor injunctive relief.

The Federal Defendants’ additional arguments do not compel a different result. First, the Supreme Court’s decision in Winter does not require us to vacate the injunction. In

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4433ooff8822

SIERRA CLUB V. TRUMP

43

Winter, the Supreme Court reversed a preliminary injunction enjoining the Navy from using a particular type of sonar that was essential to its training exercises because it violated NEPA and a number of federal environmental laws. 555 U.S. at 16–17. Key distinctions between this case and Winter render it inapposite. There, plaintiffs’ “ultimate legal claim [was] that the Navy must prepare an [environmental impact statement], not that it must cease sonar training” because the use of the sonar had otherwise been sanctioned by law. Id. at 32. Having determined that the “continuation of the exercises . . . was ‘essential to national security,’” id. at 18, the President had used his statutory authority to “exempt from compliance those elements of the Federal agency activity that [were] found by the Federal court to be inconsistent with an approved State program,” 16 U.S.C. § 1456(c)(1)(B). In addition, the Council on Environmental Quality (“CEQ”) had authorized the Navy to implement alternative arrangements to NEPA compliance that would allow the Navy to conduct its training exercises under mitigation procedures, but it imposed additional notice, research, and reporting requirements. Winter, 555 U.S. at 18–19.

By contrast, here, Sierra Club’s ultimate legal claim is that DoD cannot legally use Section 8005 to fund construction of the border wall, and moreover, that no such exemption applies. If anything, Section 8005 itself is a defense against the Executive Branch’s unconstitutional transfer of funds; however, as discussed previously, it offers no such legal cover here. Therefore, while the use of the sonar was not unlawful at the time the Supreme Court vacated the injunction in Winter, DoD’s transfer of funds here is. While the injunction here “merely ends an unlawful practice,” Rodriguez, 715 F.3d at 1145, the injunction in Winter

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4444ooff8822

44

SIERRA CLUB V. TRUMP

enjoined conduct that had been sanctioned by law, see Winter, 555 U.S. at 32.

Moreover, the public interest at issue in Winter more clearly favored vacating the injunction. “Antisubmarine warfare [was] [] the Pacific Fleet’s top war-fighting priority.” Winter, 555 U.S. at 12. Accordingly, the use of MFA sonar during training missions was deemed “mission-critical,” id. at 14, because it is not only the “most effective technology,” id. at 13, but “the only proven method of identifying submerged diesel-electric submarines operating on battery power,” id. at 14. On the other side of the equation, “the most serious possible injury [to plaintiffs] would be harm to an unknown number of marine mammals.” Id. at 26. The Court reasonably concluded that the “balance of equities and consideration of the overall public interest . . . tip strongly in favor of the Navy.” Id.

The balance of interests does not so starkly favor the Federal Defendants here. Although they allege that the injunction “frustrates the government’s ability to stop the flow of drugs across the border,” unlike the government in Winter, the Federal Defendants have failed to demonstrate that construction of the border wall would serve this purpose, or alternatively, that an injunction would inhibit this purpose. The Federal Defendants cite drug trafficking statistics, but fail to address how the construction of additional physical barriers would further the interdiction of drugs. The Executive Branch’s failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4455ooff8822

SIERRA CLUB V. TRUMP

45

data points to a contrary conclusion.16 The district court properly accorded this interest little weight.17 Therefore, we hold that the district court did not abuse its discretion, and we affirm the grant of the permanent injunction.

VII

In sum, we affirm the district court. We conclude that Sierra Club and SBCC have Article III standing to file their

16 According to the U.S. Department of Justice’s Drug Enforcement Administration’s 2018 National Drug Threat Assessment Report, the “most common method employed by [Mexican Transnational Criminal Organizations] involves transporting illicit drugs through U.S. [ports of entry] in passenger vehicles with concealed compartments or commingled with legitimate goods on tractor trailers.” 2018 National Drug Threat Assessment, U.S. Dep’t of Just. Drug Enforcement Admin. at 99 (2018). Opioids like heroin and fentanyl are most commonly smuggled across the southwest border into the U.S. through legal ports of entry. Id. at 19–20, 33; see also Joe Ward & Anjali Singhvi, Trump Claims There is a Crisis at the Border. What’s the Reality?, NEW YORK TIMES (Jan. 11, 2019) (analyzing U.S. Customs and Border Patrol data and finding that “[m]ost drugs are seized at ports of entry, not along the open border”).
17 We are likewise unconvinced by Defendants argument, citing Maryland v. King, 567 U.S. 1301 (2012), that “there is ‘irreparable harm’ whenever a government cannot enforce its own laws.” The Ninth Circuit has recognized that there is “some authority” for the idea that “a state may suffer an abstract form of harm whenever one of its acts is enjoined,” but, “to the extent that is true . . . it is not dispositive of the balance of harms analysis.” Latta v. Otter, 771 F.3d 496, 500 (9th Cir. 2014) (quoting Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), vacated and remanded on other grounds, 132 S. Ct. 1204 (2012) (alterations adopted)); see also id. at 500 n.1 (noting that “[i]ndividual justices, in orders issued from chambers, have expressed the view that a state suffers irreparable injury when one of its laws is enjoined, [but] [n]o opinion for the Court adopts this view” (citations omitted)).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4466ooff8822

46

SIERRA CLUB V. TRUMP

claims, that the Federal Defendants violated Section 8005 in transferring DoD appropriations to fund the El Paso, Yuma, El Centro, and Tucson Sectors of the proposed border wall, and that Sierra Club and SBCC have a constitutional cause of action under the Appropriations Clause and an ultra vires cause of action to challenge the Section 8005 transfers. We also decline to reverse the district court’s decision to impose a permanent injunction. Given our resolution of this case founded upon the violations of Section 8005, we need not—and do not—reach the merits of any other theory asserted by Sierra Club, nor reach any other issues presented by the parties.

AFFIRMED.

COLLINS, Circuit Judge, dissenting:
This case involves similar claims to those presented in California v. Trump, Nos. 19-16299 & 19-16336, ___ F.3d ___ (9th Cir. 2020). In each case, a distinct group of plaintiffs brought suit challenging the Acting Secretary of Defense’s invocation of § 8005 and § 9002 of the Department of Defense Appropriations Act, 2019 (“DoD Appropriations Act”), Pub. L. No. 115-245, Div. A, 132 Stat. 2981, 2999, 3042 (2018), to transfer $2.5 billion in funds that Congress had appropriated for other purposes into a different Department of Defense (“DoD”) appropriation that could then be used by DoD for construction of border fencing and accompanying roads and lighting. In California v. Trump, the relevant plaintiffs are the States of California and New Mexico, who challenged two such construction projects, and here the plaintiffs are the Sierra Club and the Southern Border

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4477ooff8822

SIERRA CLUB V. TRUMP

47

Communities Coalition (“SBCC”) (collectively, the “Organizations”), who challenge six projects. The district court granted declaratory relief to both sets of plaintiffs invalidating the transfers, but it granted permanent injunctive relief only to the Organizations. The majority concludes that the Organizations have Article III standing; that they have a cause of action to challenge the transfers under the Appropriations Clause of the Constitution as well as a cause of action under an equitable ultra vires theory; that the transfers were unlawful; and that the district court properly determined that the Organizations are entitled to declaratory and injunctive relief. I agree that at least the Sierra Club has established Article III standing, but in my view the Organizations lack any cause of action to challenge the transfers. And even assuming that they had a cause of action, I conclude that the transfers were lawful. Accordingly, I would reverse the district court’s partial judgment for the Organizations and remand for entry of partial summary judgment in favor of the Defendants. I respectfully dissent.1

1 There is considerable overlap between the substantive issues presented in this case and in California v. Trump, and my disagreements with the majority in this case largely parallel my disagreements in the other case. But rather than simply cross-reference all of the discussion in my dissent in California v. Trump, I will follow the majority and will rely on cross-reference only when it does. The result is a fair amount of verbatim repetition between this dissent and my dissent in California v. Trump, but proceeding in this way avoids the awkwardness of directing the reader to a separate published opinion when that reader wants to see what my response is to a particular point made by the majority in its opinion in this case.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4488ooff8822

48

SIERRA CLUB V. TRUMP

I

The parties’ dispute over DoD’s funding transfers comes to us against the backdrop of a complex statutory framework and an equally complicated procedural history. Before turning to the merits, I will briefly review both that framework and that history.

A

Upon request from another federal department, the Secretary of Defense is authorized to “provide support for the counterdrug activities” of that department by undertaking the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7). On February 25, 2019, the Department of Homeland Security (“DHS”) made a formal request to DoD for such assistance. Noting that its counterdrug activities included the construction of border infrastructure, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(a), 110 Stat. 3009-546, 3009-554 (1996) (codified as amended as a note to 8 U.S.C. § 1103), DHS requested that “DoD, pursuant to its authority under 10 U.S.C. § 284(b)(7), assist with the construction of fences[,] roads, and lighting” in several specified “Project Areas” in order “to block drugsmuggling corridors across the international boundary between the United States and Mexico.”

On March 25, 2019, the Acting Defense Secretary invoked § 284 and approved the provision of support for DHS’s “El Paso Sector Project 1” (which would involve DoD construction of border fencing, roads, and lighting in Luna

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4499ooff8822

SIERRA CLUB V. TRUMP

49

and Doña Ana Counties in New Mexico), as well as for, inter alia, DHS’s “Yuma Sector Project 1” (which would involve DoD construction of similar border infrastructure in Yuma County, Arizona). Thereafter, the Secretary of Homeland Security invoked his authority under § 102(c) of IIRIRA to waive a variety of federal environmental statutes with respect to the planned construction of border infrastructure in the relevant portions of the El Paso Sector and the Yuma Sector, as well as “all . . . state . . . laws, regulations, and legal requirements of, deriving from, or related to the subject of,” those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24, 2019); 84 Fed. Reg. 17187, 17188 (Apr. 24, 2019).

Subsequently, on May 9, 2019, the Acting Defense Secretary again invoked § 284, this time to approve DoD’s construction of similar border infrastructure to support DHS’s “El Centro Sector Project 1” in Imperial County, California, and DHS’s “Tucson Sector Projects 1, 2, and 3” in Pima and Cochise Counties in Arizona. Less than a week later, the Secretary of Homeland Security again invoked his authority under IIRIRA § 102(c) to waive federal and state environmental laws, this time with respect to the construction in the relevant sections of the El Centro Sector and the Tucson Sector. See 84 Fed. Reg. 21800, 21801 (May 15, 2019); 84 Fed. Reg. 21798, 21799 (May 15, 2019).

Although § 284 authorized the Acting Defense Secretary to provide this support, there were insufficient funds in the relevant DoD appropriation to do so. Specifically, for Fiscal Year 2019, Congress had appropriated for “Drug Interdiction and Counter-Drug Activities, Defense” a total of only $670,271,000 that could be used for counter-drug support. See DoD Appropriations Act, Title VI, 132 Stat. at 2997 (appropriating, under Title governing “Other Department of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5500ooff8822

50

SIERRA CLUB V. TRUMP

Defense Programs,” a total of “$881,525,000, of which $517,171,000 shall be for counter-narcotics support”); id., Title IX, 132 Stat. at 3042 (appropriating $153,100,000 under the Title governing “Overseas Contingency Operations”). Accordingly, to support the El Paso Sector Project 1 and Yuma Sector Project 1, the Acting Secretary on March 25, 2019 invoked his authority to transfer appropriations under § 8005 of the DoD Appropriations Act and ordered the transfer of $1 billion from “excess Army military personnel funds” into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. That transfer was accomplished by moving $993,627,000 from the “Military Personnel, Army” appropriation and $6,373,000 from the “Reserve Personnel, Army” appropriation.

To support the El Centro Sector Project 1 and Tucson Sector Projects 1, 2, and 3, the Acting Secretary on May 9, 2019 again invoked his transfer authority to move an additional $1.5 billion into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Pursuant to § 8005 of the DoD Appropriations Act, DoD transferred a total of $818,465,000 from 12 different DoD appropriations into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Invoking the Secretary’s distinct but comparable authority under § 9002 to transfer funds appropriated under the separate Title governing “Overseas Contingency Operations,” DoD transferred $604,000,000 from the “Afghanistan Security Forces Fund” appropriation and $77,535,000 from the “Operation and Maintenance, Defense-Wide” appropriation into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5511ooff8822

SIERRA CLUB V. TRUMP

51

B

The complex procedural context of this case involves two parallel lawsuits and four appeals to this court, and it has already produced one published Ninth Circuit opinion that was promptly displaced by the Supreme Court.

1

The Organizations filed this action in the district court against the Acting Defense Secretary, DoD, and a variety of other federal officers and agencies. In their March 18, 2019 First Amended Complaint, they sought to challenge, inter alia, any transfer of funds by the Acting Secretary under § 8005 or § 9002. California and New Mexico, joined by several other States, filed a similar action, and their March 13, 2019 First Amended Complaint also sought to challenge any such transfers. Both sets of plaintiffs moved for preliminary injunctions in early April 2019. The portion of the States’ motion that was directed at the § 8005 transfers was asserted only on behalf of New Mexico and only with respect to the construction on New Mexico’s border (i.e., El Paso Sector Project 1). The Organizations’ motion was likewise directed at El Paso Sector Project 1, but it also challenged Yuma Sector Projects 1 and one other project (“Yuma Sector Project 2”).

After concluding that the Organizations were likely to prevail on their claims that the transfers under § 8005 were unlawful and that these organizational plaintiffs had demonstrated a “likelihood of irreparable harm to their members’ aesthetic and recreational interests,” the district court on May 24, 2019 granted a preliminary injunction enjoining Defendants from using transferred funds for “Yuma

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5522ooff8822

52

SIERRA CLUB V. TRUMP

Sector Project 1 and El Paso Sector Project 1.”2 In a companion order, however, the district court denied preliminary injunctive relief to the States. Although the court held that New Mexico was likely to succeed on its claim that the transfers under § 8005 were unlawful, the court concluded that, in light of the grant of a preliminary injunction against El Paso Sector Project 1 to the Organizations, New Mexico would not suffer irreparable harm from the denial of its duplicative request for such relief. On May 29, 2019, Defendants appealed the preliminary injunction in favor of the Organizations, and after the district court refused to stay that injunction, Defendants moved in this court for an emergency stay on June 3, 2019. New Mexico did not appeal the district court’s denial of its duplicative request for a preliminary injunction.

2

While the Defendants’ emergency stay request was being briefed and considered in this court, the Organizations moved for partial summary judgment on June 12, 2019. The motion was limited to the issue of whether the transfers under § 8005 and § 9002 were lawful, and it requested corresponding declaratory relief, as well as a permanent injunction against the use of transferred funds for all six projects (El Paso Sector Project 1, El Centro Sector Project 1, Yuma Sector Project 1, and Tucson Sector Projects 1, 2, and 3). California and New Mexico (but not the other States) filed a comparable summary judgment motion that same day, directed only at El Paso

2 By the time the district court ruled, DoD had decided not to use funds transferred under § 8005 for any construction in Yuma Sector Project 2, and so the request for a preliminary injunction as to that project was moot.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5533ooff8822

SIERRA CLUB V. TRUMP

53

Sector Project 1 and El Centro Sector Project 1. Defendants filed cross-motions for summary judgment on the legality of the transfers under § 8005 and § 9002 with respect to the corresponding projects at issue in each case.

On June 28, 2019, the district court granted partial summary judgment and declaratory relief to both sets of plaintiffs, concluding that the transfers under § 8005 and § 9002 were unlawful. The court granted permanent injunctive relief to the Organizations against all six projects, but it denied any such relief to California and New Mexico. The district court concluded that California and New Mexico had failed to prove a threat of future demonstrable environmental harm. The court expressed doubts about the States’ alternative theory that they had demonstrated injury to their sovereign interests, but the court ultimately concluded that it did not need to resolve that issue. As before, the district court instead held that California and New Mexico would not suffer any irreparable harm in light of the duplicative relief granted to the Organizations. The district court denied Defendants’ cross-motions for summary judgment in both cases. Invoking its authority under Federal Rule of Civil Procedure 54(b), the district court entered partial judgments in favor of, respectively, the Sierra Club and SBCC, and California and New Mexico. The district court denied Defendants’ request to stay the permanent injunction pending appeal.

3

On June 29, 2019, Defendants timely appealed in both cases and asked this court to stay the permanent injunction based on the same briefing and argument that had been presented in the preliminary injunction appeal. California

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5544ooff8822

54

SIERRA CLUB V. TRUMP

and New Mexico timely cross-appealed nine days later. On July 3, 2019, this court consolidated Defendants’ appeal of the judgment and permanent injunction with Defendants’ pending appeal of the preliminary injunction.3 That same day, a motions panel of this court issued a 2–1 published decision denying Defendants’ motion for a stay of the permanent injunction (which had overtaken the preliminary injunction). See Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019).

Defendants then applied to the Supreme Court for a stay of the permanent injunction pending appeal, which the Court granted on July 26, 2019. See Trump v. Sierra Club, 140 S. Ct. 1 (2019). That stay remains in effect “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” Id. at 1. In granting the stay, the Court concluded that “the Government has made a sufficient showing at this stage that [the Sierra Club and SBCC] have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id.

II

Defendants have not contested the Article III standing of the Sierra Club and SBCC on appeal, but as the majority notes, “‘the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.’” See Maj. Opin. at 17 n.9 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)). As “an

3 This court later consolidated the appeal and cross-appeal in the States’ case with the already-consolidated appeals in this case.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5555ooff8822

SIERRA CLUB V. TRUMP

55

indispensable part of the plaintiff’s case, each element” of Article III standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife (Lujan v. Defenders), 504 U.S. 555, 561 (1992). Thus, although well-pleaded allegations are enough at the motion-to-dismiss stage, they are insufficient to establish standing at the summary-judgment stage. Id. “In response to a summary judgment motion, . . . the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Id. (simplified).

In reviewing standing sua sponte in the context of crossmotions for summary judgment, it is appropriate to apply the more lenient standard that takes the plaintiffs’ evidence as true and then asks whether a reasonable trier of fact could find Article III standing. Lujan v. Defenders, 504 U.S. at 563 (applying this standard in evaluating whether Government’s cross-motion for summary judgment should have been granted). In their briefs below concerning the parties’ crossmotions, the Sierra Club and SBCC each asserted that Defendants’ allegedly unlawful conduct caused harm to their members’ recreational, aesthetic, and environmental interests. Accepting the Organizations’ evidence as true, and drawing all reasonable inferences in their favor, a reasonable trier of fact could conclude that at least the Sierra Club has associational standing under Hunt v. Washington State Apple

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5566ooff8822

56

SIERRA CLUB V. TRUMP

Advert. Comm’n, 432 U.S. 333 (1977).4 Under the Hunt test, an association has standing if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343. The Sierra Club has presented sufficient evidence as to each of these three requirements.

To establish that its members would suffer irreparable harm absent a permanent injunction, the Sierra Club presented declarations from members who regularly visit the respective project areas. These members described how the construction and the resulting border barriers would interfere with their enjoyment of the surrounding landscape and would impede their ability to fish, to hunt, to monitor and document wildlife and vegetation for educational purposes, and to participate in other activities near the project sites. These injuries to the members’ recreational, aesthetic, and environmental interests are sufficient to constitute an injuryin-fact for Article III purposes. See Lujan v. Defenders, 504 U.S. at 562–63 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). Moreover, these injuries are fairly traceable to the construction, and an injunction blocking the transfers would redress those injuries by effectively stopping that

4 The district court explicitly addressed Article III standing only in connection with the preliminary injunction motion. Although Article III standing was not revisited when the Organizations subsequently moved for summary judgment and a permanent injunction, the Organizations’ showing of injury in support of a permanent injunction provides a sufficient basis for evaluating their Article III standing.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5577ooff8822

SIERRA CLUB V. TRUMP

57

construction. See id. at 560–61. This evidence is therefore sufficient to establish that these members would have Article III standing to sue in their own right.

The other Hunt requirements are also satisfied. These members’ interests are clearly germane to the Sierra Club’s mission to protect the natural environment and local wildlife and plant life. And in seeking declaratory and injunctive relief, the lawsuit does not require the participation of individual members. See Hunt, 432 U.S. at 343.

Because the Sierra Club satisfies the applicable standing requirements as to all of the challenged projects, we may proceed to the merits without having to address SBCC’s standing. See Secretary of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly does have standing, we need not address the standing of the other [plaintiffs], whose position here is identical to the State’s.”). And given my view that the Organizations’ legal challenges fail, I perceive no obstacle to entering judgment against both the Sierra Club and SBCC without determining whether the latter has standing. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 98 (1998).

III

After examining the Article III standing of the Organizations, the majority then proceeds straight to the merits of whether the transfers were unlawful. See Maj. Opin. at 23. But we ought not address that issue unless we have first determined that the Organizations have asserted a viable cause of action that properly brings that issue before us. See Air Courier Conf. v. American Postal Workers Union AFL-CIO, 498 U.S. 517, 530–31 (1991). The majority

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5588ooff8822

58

SIERRA CLUB V. TRUMP

belatedly gets to that question in Section V of its opinion, holding that the Organizations have two viable causes of action: an equitable cause of action under the Constitution and an ultra vires cause of action. See Maj. Opin. at 25. I disagree with that conclusion, and I also disagree with the Organizations’ alternative argument that they have a valid cause of action under the Administrative Procedure Act (“APA”). See Trump v. Sierra Club, 140 S. Ct. at 1 (“[T]he Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.”).5

5 In its merits analysis, the majority scarcely cites the motions panel’s published decision, which addressed the Organizations’ likelihood of success on the merits of many of the same issues before us. I agree with the majority’s implicit rejection of the Organizations’ contention that the motions panel’s opinion bars this merits panel from examining these issues afresh. Although the motions panel decision is a precedent, it remains subject to reconsideration by this court until we issue our mandate. See United States v. Houser, 804 F.2d 565, 567–68 (9th Cir. 1986) (distinguishing, on this point, between reconsideration of a prior panel’s decision “during the course of a single appeal” and a decision “on a prior appeal”); cf. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (three-judge panel lacks authority to overrule a decision in a prior appeal in the same case). To the extent that Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015), suggests otherwise, that suggestion is dicta and directly contrary to our decision in Houser. See East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1261–65 (9th Cir. 2020). In all events, the precedential force of the motions panel’s opinion was largely, if not entirely, vitiated by the Supreme Court’s subsequent decision to grant the very stay that the motions panel’s opinion denied. I do not agree, however, with the majority’s disregard of the Supreme Court’s order in this case—a disregard that hardly befits the “wary and humble” attitude the majority professes. See Maj. Opin. at 25–26.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5599ooff8822

SIERRA CLUB V. TRUMP

59

A

Although the Organizations invoke the APA only as a fallback to their preferred non-statutory claims, I think it is appropriate to first consider whether they have a statutory cause of action under the APA. Cf. Chamber of Commerce v. Reich, 74 F.3d 1322, 1326–27 (D.C. Cir. 1996) (suggesting that, if a plaintiff relies on both the APA and non-statutoryreview claims, the APA claim should be considered first). Even assuming arguendo that the APA does not displace reliance upon alternative non-statutory causes of action, see infra at 69, the contours of any express cause of action under the APA certainly provide appropriate context for the consideration of any non-statutory claim.

In authorizing suit by any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, the APA incorporates the familiar zone-of-interests test, which reflects a background principle of law that always “applies unless it is expressly negated,” Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014).6 That test requires a plaintiff to “establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. NWF, 497 U.S. at

6 The Supreme Court has not squarely addressed whether the zone-ofinterests test applies to a plaintiff who claims to have “suffer[ed] legal wrong because of agency action,” which is the other class of persons authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National Wildlife Fed. (Lujan v. NWF), 497 U.S. 871, 882–83 (1990). The Organizations have not invoked any such theory here, so I have no occasion to address it.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6600ooff8822

60

SIERRA CLUB V. TRUMP

883 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 396–97 (1987)). This test “is not meant to be especially demanding.” Clarke, 479 U.S. at 399. Because the APA was intended to confer “generous review” of agency action, the zone-of-interests test is more flexibly applied under that statute than elsewhere, and it requires only a showing that the plaintiff is “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Orgs., Inc. v. Camp (Data Processing), 397 U.S. 150, 153, 156 (1970) (emphasis added); see also Bennett, 520 U.S. at 163 (“what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the generous review provisions of the APA may not do so for other purposes”) (simplified). Because an APA plaintiff need only show that its interests are “arguably” within the relevant zone of interests, “the benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Although these standards are generous, the Organizations have failed to satisfy them.

1

In applying the zone-of-interests test, we must first identify the “statutory provision whose violation forms the legal basis for [the] complaint” or the “gravamen of the complaint.” Lujan v. NWF, 497 U.S. at 883, 886; see also Air Courier Conf., 498 U.S. at 529. That question is easy here. The Organizations’ complaint alleges that the challenged transfers are not authorized by § 8005 and § 9002 because “[t]he diversion of funding to build a border wall or fence is not based on unforeseen military requirements”; “the building of a permanent border wall is not a ‘military requirement’”;

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6611ooff8822

SIERRA CLUB V. TRUMP

61

and “Congress has denied funding for Defendants’ planned wall construction, thus barring the Department of Defense from using transfers to fund it.”7 The Organizations allege that, because Congress thus “has not authorized the Department of Defense to transfer additional Defense funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of supporting another agency, rather than for military requirements,” the Appropriations Clause bars the transfers and “Defendants are acting ultra vires in seeking to transfer funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent border wall.” Given that the case turns on whether the transfers met the criteria in § 8005, that statute is plainly the “gravamen of the complaint,” and it therefore defines the applicable zone of interests. Lujan v. NWF, 497 U.S. at 886.

Although the Organizations invoke the Appropriations Clause and the constitutional separation of powers in contending that Defendants’ actions are unlawful, any such constitutional violations here can be said to have occurred only if the transfers violated the limitations set forth in § 8005: if Congress authorized DoD to transfer the appropriated funds from one account to another, and to spend them accordingly, then the money has been spent “in Consequence of Appropriations made by Law,” U.S. CONST. art. I, § 9, cl. 7, and the Executive has not otherwise

7 Because the limitations on transfers set forth in § 8005 also apply to transfers under § 9002, see 132 Stat. at 3042, the parties use “§ 8005” to refer to both provisions, and I will generally do so as well.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6622ooff8822

62

SIERRA CLUB V. TRUMP

transgressed the separation of powers.8 All of the Organizations’ theories for challenging the transfers— whether styled as constitutional claims or as statutory claims—thus rise or fall based on whether DoD has transgressed the limitations on transfers set forth in § 8005. As a result, § 8005 is obviously the “statute whose violation is the gravamen of the complaint.” Lujan v. NWF, 497 U.S. at 886. To maintain a claim under the APA, therefore, the Organizations must establish that they are within the zone of interests of § 8005.9

8 The only possible exception is the Organizations’ argument that § 8005 itself violates the Presentment Clause. As explained below, that contention is frivolous. See infra at 71–72.
9 The Organizations briefly contend that DoD has exceeded its authority under § 284 and has violated the National Environmental Policy Act (“NEPA”), but even assuming arguendo that the Organizations have a cause of action to raise any such challenges, they are patently without merit. The Organizations note that § 284 contains a special reporting requirement for “small scale construction” projects, which are defined as projects costing $750,000 or less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and they argue that this shows that Congress did not authorize projects on the scale at issue here. The inference is a non sequitur: the fact that Congress requires special reporting of these smaller projects does not mean that they are the only projects authorized. Congress may have imposed such a unique reporting requirement in order to capture the sort of smaller-scale activities that might otherwise have escaped its notice. And the fact that past expenditures under § 284 have happened to be for more modest projects is irrelevant, because nothing in the text of § 284 imposes any such size limits on the projects authorized by that statute. The Organizations’ reliance on NEPA is likewise meritless. We have upheld DHS’s waiver of NEPA under § 102(c) of IIRIRA, see In re Border Infrastructure Envtl. Litig., 915 F.3d 1213, 1225 (9th Cir. 2019), and the district court correctly concluded that the waiver applies to construction that DoD undertakes under § 284 to “provide support” to DHS at DHS’s “request[],” 10 U.S.C. § 284. See Sierra Club v. Trump, 379 F. Supp. 3d 883, 922–23 (N.D. Cal. 2019).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6633ooff8822

SIERRA CLUB V. TRUMP

63

2

Having identified the relevant statute, our next task is to “discern the interests arguably to be protected by the statutory provision at issue” and then to “inquire whether the plaintiff’s interests affected by the agency action in question are among them.” National Credit Union Admin. v. First Nat’l Bank & Trust Co. (NCUA), 522 U.S. 479, 492 (1998) (simplified). Identifying the interests protected by § 8005 is not difficult, and here the Organizations’ asserted interests are not among them.

Section 8005 is a grant of general transfer authority that allows the Secretary of Defense, if he determines “that such action is necessary in the national interest” and if the Office of Management and Budget approves, to transfer from one DoD “appropriation” into another up to $4 billion of the funds that have been appropriated under the DoD Appropriations Act “for military functions (except military construction).” See 132 Stat. at 2999. Section 8005 contains five provisos that further regulate this transfer authority, and the only limitations on the Secretary’s authority that the Organizations claim were violated here are all contained in the first such proviso. That proviso states that “such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Id.10 The remaining provisos require prompt notice to Congress “of all transfers made pursuant to this

10 Similar language has been codified into permanent law. See 10 U.S.C. § 2214(b). No party contends that § 2214(b) alters the relevant analysis under the comparably worded provision in § 8005.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6644ooff8822

64

SIERRA CLUB V. TRUMP

authority or any other authority in this Act”; proscribe the use of funds to make requests to the Committees on Appropriations for reprogrammings that are inconsistent with the restrictions described in the first proviso; set a time limit for making requests for multiple reprogrammings; and exempt “transfers among military personnel appropriations” from counting towards the $4 billion limit. Id.

Focusing on “the particular provision of law upon which the plaintiff relies,” Bennett, 520 U.S. at 175–76, makes clear that § 8005 as a whole, and its first proviso in particular, are aimed at tightening congressional control over the appropriations process. The first proviso’s general prohibition on transferring funds for any item that “has been denied by the Congress” is, on its face, a prohibition on using the transfer authority to effectively reverse Congress’s specific decision to deny funds to DoD for that item. 132 Stat. at 2999. The second major limitation imposed by the first proviso states that the transfer authority is not to be used unless, considering the items “for which [the funds were] originally appropriated,” there are “higher priority items” for which the funds should now be used in light of “military requirements” that were “unforeseen” in DoD’s request for Fiscal Year 2019 appropriations. Id. The obvious focus of this restriction is likewise to protect congressional judgments about appropriations by (1) restricting DoD’s ability to reprioritize the use of funds differently from how Congress decided to do so and (2) precluding DoD from transferring funds appropriated by Congress for “military functions” for purposes that do not reflect “military requirements.” The remaining provisos, including the congressional reporting requirement, all similarly aim to maintain congressional control over appropriations. And all of the operative restrictions in § 8005 that the Organizations

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6655ooff8822

SIERRA CLUB V. TRUMP

65

invoke here are focused solely on limiting DoD’s ability to use the transfer authority to reverse the congressional judgments reflected in DoD’s appropriations.

In addition to preserving congressional control over DoD’s appropriations, § 8005 also aims to give DoD some measure of flexibility to make necessary changes. Notably, in authorizing the Secretary to make transfers among appropriations, § 8005’s first proviso specifies only one criterion that he must consider in exercising that discretion: he must determine whether the item for which the funds will be used is a “higher priority item[]” in light of “unforeseen military requirements.” 132 Stat. at 2999 (emphasis added). Under the statute, he need not consider any other factor concerning either the original use for which the funds were appropriated or the new use to which they will now be put.

In light of these features of § 8005, the “interests” that the Organizations claim are “affected by the agency action in question” are not “among” the “interests arguably to be protected” by § 8005. NCUA, 522 U.S. at 492 (simplified). In particular, the Organizations’ asserted recreational, aesthetic, and environmental interests clearly lie outside the zone of interests protected by § 8005. The statute does not mention recreational, aesthetic, and environmental interests, nor does it require the Secretary to consider such interests. On the contrary, the statute requires him only to consider whether an item is a “higher priority” in light of “military requirements,” and it is otherwise entirely neutral as to the uses to which the funds will be put. Indeed, that neutrality is reflected on the face of the statute, which says that, once the transfer is made, the funds are “merged with and . . . available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.” 132 Stat.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6666ooff8822

66

SIERRA CLUB V. TRUMP

at 2999 (emphasis added). Because the alleged recreational, aesthetic, and environmental harms that the Organizations assert here play no role in the analysis that § 8005 requires the Secretary to conduct, and are not among the harms that § 8005’s limitations seek to address or protect, the Organizations’ interests in avoiding these harms are not within § 8005’s zone of interests.

Moreover, focusing on the specific interests for which the Organizations have presented sufficient evidentiary support at the summary-judgment stage, see Lujan v. NWF, 497 U.S. at 884–85, further confirms that, in deciding whether to redirect excess military personnel funds under § 8005 to assist DHS by building fencing to stop international drug smuggling, the Acting Secretary of Defense did not have to give even the slightest consideration to whether that reprogramming of funds would disrupt views of the desert landscape or affect local flora and fauna. Put simply, the Organizations’ recreational, aesthetic, and environmental interests are “‘so marginally related to . . . the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Patchak, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399).

3

The Organizations nonetheless claim that they fall within § 8005’s zone of interests because § 8005 was “aimed at tightening congressional control over executive spending,” and the Organizations’ interests do not “meaningfully diverge from Congress’s interests in enacting the statute.” This contention fails. As the Supreme Court made clear in Lujan v. NWF, the zone-of-interests test requires the plaintiff to make a factual showing that the plaintiff itself, or someone

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6677ooff8822

SIERRA CLUB V. TRUMP

67

else whose interests the plaintiff may properly assert, has a cognizable interest that falls within the relevant statute’s zone of interests. 497 U.S. at 885–99 (addressing whether the interests of NWF—or of any of its members, whose interests NWF could validly assert under Hunt’s associational standing doctrine—had been shown to be within the relevant zone of interests). I am aware of no precedent that would support the view that these Organizations can represent the interests of Congress (akin to NWF’s representation of the interests of its members), much less that they can do so merely because they are sympathetic to Congress’s perceived policy objectives.11 But the Organizations do not actually rely on such a novel theory. Instead, the Organizations suggest that, merely because their overall litigation objectives here do not diverge from those of Congress, they have thereby satisfied the zoneof-interests test with respect to their own interests. This theory is clearly wrong.

The critical flaw in the Organizations’ analysis is that it rests, not on the interests they are asserting (preservation of landscape, flora, fauna, etc.), but on the legal theory that the Organizations invoke to protect those interests here. But the zone-of-interests test focuses on the former and not the latter. See Lujan v. NWF, 497 U.S. at 885–89. Indeed, if the Organizations were correct, that would effectively eliminate

11 Even if the Organizations could assert Congress’s interests in some representational capacity, they could do so only if the injury to Congress’s interests satisfied the requirements of Article III standing. See Air Courier Conf., 498 U.S. at 523–24 (zone-of-interests test is applied to those injuries-in-fact that meet Article III requirements). I express no view on that question. Cf. U.S. House of Reps. v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019) (holding that House lacks Article III standing to challenge the transfers at issue here), appeal ordered heard en banc, 2020 WL 1228477 (D.C. Cir. 2020).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6688ooff8822

68

SIERRA CLUB V. TRUMP

the zone-of-interests test. By definition, anyone who alleges a violation of a particular statute has thereby invoked a legal theory that does not “meaningfully diverge” from the interests of those other persons or entities who are within that statute’s zone-of-interests. Such a tautological congruence between the Organizations’ legal theory and Congress’s institutional interests is not sufficient to satisfy the zone-ofinterests test here.

The Organizations suggest that their approach is supported by the D.C. Circuit’s decision in Scheduled Airlines Traffic Offices, Inc. v. Department of Defense, 87 F.3d 1356 (D.C. Cir. 1996), but that is wrong. As the opinion in that case makes clear, the D.C. Circuit was relying on the same traditional zone-of-interests test, under which a plaintiff’s interests are “outside the statute’s ‘zone of interests’ only ‘if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” 87 F.3d at 1360 (quoting Clarke, 479 U.S. at 399). The court mentioned “congruence” in the course of explaining why the plaintiff’s interests in that case were “not more likely to frustrate than to further statutory objectives,” i.e., why those interests were not inconsistent with the purposes implicit in the statute. Id. (simplified). It did not thereby suggest—and could not properly have suggested—that the mere lack of any such inconsistency is alone sufficient under the zone-of-interests test. Here, the problem is not that the Organizations’ interests are inconsistent with the purposes of § 8005, but rather that they are too “marginally related” to those purposes. See supra at 66.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6699ooff8822

SIERRA CLUB V. TRUMP

69

The Organizations also suggest that we must apply the zone-of-interests test broadly here, because—given Congress’s inability to enforce the limitations of § 8005 directly—the agency’s transfers would otherwise be effectively “unreviewable.” The assumption that no one will ever be able to sue for any violation of § 8005 seems doubtful, cf. Sierra Club v. Trump, 929 F.3d at 715 (N.R. Smith, J., dissenting) (suggesting that “those who would have been entitled to the funds as originally appropriated” may be within the zone of interests of § 8005), but in any event, we are not entitled to bend the otherwise applicable—and already lenient—standards to ensure that someone will be able to sue in this case or others like it.

B

As noted earlier, the Organizations only invoke the APA as a fallback option, and they instead insist that they may assert claims under the Constitution, as well as an equitable cause of action to enjoin “ultra vires” conduct. The Organizations do not have a cause of action under either of these theories.

1

The Organizations contend that they are not required to satisfy any zone-of-interests test to the extent that they assert non-APA causes of action to enjoin Executive officials from taking unconstitutional action.12 Even assuming that an

12 It is not entirely clear that the Organizations are alternatively contending that APA claims to enjoin unconstitutional conduct, see 5 U.S.C. § 706(2)(B), are exempt from the zone-of-interests test. To the extent that they are so contending, the point seems doubtful. See Data

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7700ooff8822

70

SIERRA CLUB V. TRUMP

equitable cause of action to enjoin unconstitutional conduct exists alongside the APA’s cause of action, see Juliana v. United States, 947 F.3d 1159, 1167–68 (9th Cir. 2020); Navajo Nation v. Department of the Interior, 876 F.3d 1144, 1172 (9th Cir. 2017); but see Sierra Club v. Trump, 929 F.3d at 715–17 (N.R. Smith, J., dissenting), it avails the Organizations nothing here. The Organizations have failed to allege the sort of constitutional claim that might give rise to such an equitable action, because their “constitutional” claim is effectively the very same § 8005-based claim dressed up in constitutional garb. And even if this claim counted as a “constitutional” one, it would still be governed by the same zone of interests defined by the relevant limitations in § 8005.

a

The Organizations assert three constitutional claims in their operative complaint: (1) that Defendants have violated the constitutional separation of powers by “usurp[ing] Congress’s legislative authority”; (2) that Defendants have violated the Presentment Clause by “modify[ing] or repeal[ing] Congress’s appropriations legislation by executive proclamation, rather than by law”; and (3) that Defendants have violated the Appropriations Clause by “allocat[ing] money from the Department of the Treasury by executive proclamation, rather than by law, and in contravention of restrictions contained in Congress’s appropriations’ laws.”

Processing, 397 U.S. at 153 (zone-of-interests test requires APA claimant to show that its interest “is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”). But in all events, any such APA-based claim to enjoin unconstitutional conduct would fail for the same reasons as the Organizations’ purported free-standing equitable claim to enjoin such conduct.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7711ooff8822

SIERRA CLUB V. TRUMP

71

As clarified in their subsequent briefing, the Organizations assert both what I will call a “strong” form of these constitutional arguments and a more “limited” form. In its strong form, the Organizations’ argument is that, even if § 8005 authorized the transfers in question here, those transfers nonetheless violated the Presentment Clause. In its more limited form, the Organizations’ argument is that the transfers violated the separation of powers, the Presentment Clause, and the Appropriations Clause because the transfers were not authorized by § 8005.

I need not address whether the Organizations have an equitable cause of action to assert the strong form of their constitutional argument, because in my view that argument on the merits is so “wholly insubstantial and frivolous” that it would not even give rise to federal jurisdiction. Bell v. Hood, 327 U.S. 678, 682–83 (1946); see also Steel Co., 523 U.S. at 89. If § 8005 allowed the transfers here, then that necessarily means that the Executive has properly spent funds that Congress, by statute, has appropriated and allowed to be spent for that purpose. Cf. Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (“allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion”). By transferring funds after finding that the statutory conditions for doing so are met, an agency thereby “execut[es] the policy that Congress had embodied in the statute” and does not unilaterally alter or repeal any law in violation of the Presentment Clause or the separation of powers. See Clinton v. City of New York, 524 U.S. 417, 444 (1998). If anything, it is the Organizations’ theory—that the federal courts must give effect to an alleged broader congressional judgment against border funding regardless of whether that judgment

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7722ooff8822

72

SIERRA CLUB V. TRUMP

is embodied in binding statutory language—that would offend separation-of-powers principles.

That leaves only the more limited form of the Organizations’ argument, which is that, if § 8005 did not authorize the transfers, then the expenditures violated the Appropriations Clause, the Presentment Clause, and the separation of powers. Under Dalton v. Specter, 511 U.S. 462 (1994), this theory—despite its constitutional garb—is properly classified as “a statutory one,” id. at 474. It therefore does not fall within the scope of the asserted nonAPA equitable cause of action to enjoin unconstitutional conduct.13

In Dalton, the Court addressed a non-APA claim to enjoin Executive officials from implementing an allegedly unconstitutional Presidential decision to close certain military bases under the Defense Base Closure and Realignment Act of 1990. 511 U.S. at 471.14 But the claim in Dalton was not that the President had directly transgressed an applicable constitutional limitation; rather, the claim was that, because Executive officials “violated the procedural requirements” of the statute on which the President’s decision ultimately rested, the President thereby “act[ed] in excess of his statutory authority” and therefore “violate[d] the

13 There remains the Organizations’ claim that statutory violations may be enjoined under a non-APA ultra vires cause of action for equitable relief, but that also fails for the reasons discussed below. See infra at 79–80.
14 The plaintiffs in Dalton also asserted a claim under the APA itself, but that claim failed for the separate reason that the challenged final action was taken by the President personally, and the President is not an “agency” for purposes of the APA. See 511 U.S. at 469.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7733ooff8822

SIERRA CLUB V. TRUMP

73

constitutional separation-of-powers doctrine.” Id. at 471–72. The Supreme Court rejected this effort to “eviscerat[e]” the well-established “distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other.” Id. at 474 (emphasis added). As the Court explained, its “cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” Id. at 472. The Court distinguished Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), on the ground that there “the Government disclaimed any statutory authority for the President’s seizure of steel mills,” and as a result the Constitution itself supplied the rule of decision for determining the legality of the President’s actions. Dalton, 511 U.S. at 473. Because the “only basis of authority asserted was the President’s inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces,” Youngstown thus “necessarily turned on whether the Constitution authorized the President’s actions.” Id. (emphasis added). By contrast, given that the claim in Dalton was that the President had violated the Constitution because Executive officials had “violated the terms of the 1990 Act,” the terms of that statute provided the applicable rule of decision and the claim was therefore “a statutory one.” Id. at 474. And because those claims sought to enjoin conduct on the grounds that it violated statutory requirements, it was subject to the “longstanding” limitation that non-APA “review is not available when the statute in question commits the decision to the discretion of the President.” Id.

Under Dalton, the Organizations’ purported “constitutional” claims—at least in their more limited

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7744ooff8822

74

SIERRA CLUB V. TRUMP

version—are properly classified as statutory claims that do not fall within any non-APA cause of action to enjoin unconstitutional conduct. 511 U.S. at 474. Here, as in Dalton, Defendants have “claimed” the “statutory authority” of § 8005, and any asserted violation of the Constitution would occur only if, and only because, Defendants’ conduct is assertedly not authorized by § 8005. Id. at 473. The rule of decision for this dispute is thus not supplied, as in Youngstown, by the Constitution; rather, it is supplied only by § 8005. Id. at 473–74. Because these claims by the Organizations are thus “statutory” under Dalton, they may only proceed, if at all, under an equitable cause of action to enjoin ultra vires conduct, and they would be subject to any limitations applicable to such claims. Id. at 474. The Organizations do assert such a fallback claim here, but it fails for the reasons I explain below. See infra at 79–80.

b

But even if the Organizations’ claims may properly be classified as constitutional ones for purposes of the particular equitable cause of action they invoke here, those claims would still fail.

To the extent that the Organizations argue that the Constitution itself grants a cause of action allowing any plaintiff with an Article III injury to sue to enjoin an alleged violation of the Appropriations Clause, the Presentment Clause, or the separation of powers, there is no support for such a theory. None of the cases cited by the Organizations involved putative plaintiffs, such as the Organizations here, who are near the outer perimeter of Article III standing. On the contrary, these cases involved either allegedly unconstitutional agency actions directly targeting the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7755ooff8822

SIERRA CLUB V. TRUMP

75

claimants, see Bond v. United States, 564 U.S. 211, 225–26 (2011) (criminal defendant challenged statute under which she was convicted on federalism and separation-of-powers grounds); United States v. McIntosh, 833 F.3d 1163, 1174–75 (9th Cir. 2016) (criminal defendants sought to enjoin, based on an appropriations rider and the Appropriations Clause, the Justice Department’s expenditure of funds to prosecute them), or they involved a suit based on an express statutory cause of action, see Clinton v. City of New York, 524 U.S. at 428 (noting that right of action was expressly conferred by 2 U.S.C. § 692(a)(1) (1996 ed.)).

Moreover, the majority’s novel contention that the Constitution requires recognizing, in this context, an equitable cause of action that extends to the outer limits of Article III cannot be squared with the Supreme Court’s decision in Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015). There, the Court rejected the view that the Supremacy Clause itself created a private right of action for equitable relief against preempted statutes, and instead held that any such equitable claim rested on “judge-made” remedies that are subject to “express and implied statutory limitations.” Id. at 325–27. The Supremacy Clause provides a particularly apt analogy here, because (like the Appropriations Clause) the asserted “unconstitutionality” of the challenged action generally depends upon whether it falls within or outside the terms of a federal statute: a state statute is “unconstitutional under the Supremacy Clause” only if it is “contrary to federal law,” Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1361–62 (9th Cir. 1998), and here, the transfers violated the Appropriations Clause only if they were barred by the limitations in § 8005. And just as the Supremacy Clause protects Congress’s “broad discretion with regard to the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7766ooff8822

76

SIERRA CLUB V. TRUMP

enactment of laws,” Armstrong, 575 U.S. at 325–26, so too the Appropriations Clause protects “congressional control over funds in the Treasury,” McIntosh, 833 F.3d at 1175. It is “unlikely that the Constitution gave Congress such broad discretion” to enact appropriations laws only to simultaneously “require[] Congress to permit the enforcement of its laws” by any “private actor[]” with even minimal Article III standing, thereby “limit[ing] Congress’s power” to decide how “to enforce” the spending limitations it enacts. Armstrong, 575 U.S. at 325–26.15

The Appropriations Clause thus does not itself create a constitutionally required cause of action that extends to the limits of Article III. On the contrary, any equitable cause of action to enforce that clause would rest on a “judge-made” remedy: as Armstrong observed, “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” 575 U.S. at 327. At least where, as here, the contours of the applicable constitutional line (under the

15 The majority asserts that Armstrong is distinguishable on the grounds that the Appropriations Clause is supposedly more protective of individual liberty than the Supremacy Clause. See Maj. Opin. at 30–31. Nothing is cited to support this comparative assertion, which seems highly doubtful: there is no reason to think that Congress’s ability, in the exercise of its enumerated powers, to preempt potentially oppressive state laws is any less protective of individual liberty than is Congress’s ability to insert riders in appropriations bills. Moreover, to the extent that these clauses protect individual liberty, they both do so only as a consequence of protecting congressional authority within our overall constitutional structure. Armstrong’s core point—that it would be “strange indeed” to construe a clause that protects congressional power as simultaneously saddling Congress with a particular enforcement method—remains equally applicable to both. 575 U.S. at 326.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7777ooff8822

SIERRA CLUB V. TRUMP

77

Appropriations Clause) are defined by and parallel a statutory line (under § 8005), any such judge-made equitable cause of action would be subject to “express and implied statutory limitations,” as well as traditional limitations governing such equitable claims. Id.

One long-established “‘judicially self-imposed limit[] on the exercise of federal jurisdiction’”—including federal equitable jurisdiction—is the requirement “that a plaintiff’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett, 520 U.S. at 162 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). This limitation is not confined to the APA, but rather reflects a “prudential standing requirement[] of general application” that always “applies unless it is expressly negated” by Congress. Id. at 163.16 Because Congress has not expressly negated that test in any relevant respect, the Organizations’ equitable cause of action to enforce the Appropriations Clause here remains subject to the zone-ofinterests test. Cf. Thompson v. North American Stainless, LP,

16 The majority wrongly contends that, by quoting this language from Bennett, and stating that the zone-of-interests test therefore “applies to all statutorily created causes of action,” Lexmark, 572 U.S. at 129 (emphasis added), the Court in Lexmark thereby intended to signal that the test only applies to statutory claims and not to non-statutory equitable claims. See Maj. Opin. at 36–37. Nothing in Lexmark actually suggests any such negative pregnant; instead, the Court’s reference to “statutorily created causes of action” reflects nothing more than the fact that only statutory claims were before the Court in that case. See 572 U.S. at 129. Moreover, Lexmark notes that the zone-of-interests test’s roots lie in the common law, id. at 130 n.5, and Bennett (upon which Lexmark relied) states that the test reflects a “prudential standing requirement[] of general application” that applies to any “exercise of federal jurisdiction,” 520 U.S. at 162–63.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7788ooff8822

78

SIERRA CLUB V. TRUMP

562 U.S. 170, 176–77 (2011) (construing a cause of action as extending to “any person injured in the Article III sense” would often produce “absurd consequences” and is for that reason rarely done). And given the unique nature of an Appropriations Clause claim, as just discussed, the line between constitutional and unconstitutional conduct here is defined entirely by the limitations in § 8005, and therefore the relevant zone of interests for the Organizations’ Appropriations-Clause-based equitable claim remains defined by those limitations. Thus, contrary to the majority’s conclusion, see Maj. Opin. at 39–40, the Organizations are outside the applicable zone of interests for this claim as well.

In arguing for a contrary view, the Organizations rely heavily on United States v. McIntosh, asserting that there we granted non-APA injunctive relief based on the Appropriations Clause without inquiring whether the claimants were within the zone of interests of the underlying appropriations statute. McIntosh cannot bear the considerable weight that the Organizations place on it.

In McIntosh, we asserted interlocutory jurisdiction over the district courts’ refusal to enjoin the expenditure of funds to prosecute the defendants—an expenditure that allegedly violated an appropriations rider barring the Justice Department from spending funds to prevent certain States from “‘implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.’” 833 F.3d at 1175; see also id. at 1172–73. We held that the defendants had Article III standing and that, if the Department was in fact “spending money in violation” of that rider in prosecuting the defendants, that would produce a violation of the Appropriations Clause that could be raised by the defendants in challenging their prosecutions. Id.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7799ooff8822

SIERRA CLUB V. TRUMP

79

at 1175. After construing the meaning of the rider, we then remanded the matter for a determination whether the rider was being violated. Id. at 1179. Contrary to the Organizations’ dog-that-didn’t-bark theory, nothing can be gleaned from the fact that the zone-of-interests test was never discussed in McIntosh. See Cooper Indus., Inc. v. Aviall Servs, Inc., 543 U.S. 157, 170 (2004) (“‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’”) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Moreover, any such silence seems more likely to have been due to the fact that it was so overwhelmingly obvious that the defendants were within the rider’s zone of interests that the point was incontestable and uncontested. An asserted interest in not going to prison for complying with state medical-marijuana laws seems well within the zone of interests of a statute prohibiting interference with the implementation of such state laws.

2

The only remaining question is whether the Organizations may evade the APA’s zone-of-interests test by asserting a non-APA claim for ultra vires conduct in excess of statutory authority. Even assuming that such a cause of action exists alongside the APA, cf. Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 189–90 (D.C. Cir. 2006), I conclude that it would be subject to the same zone-of-interests limitations as the Organizations’ APA claims and therefore likewise fails.

For the same reasons discussed above, any such equitable cause of action rests on a judge-made remedy that is subject to the zone-of-interests test. See supra at 74–79. The

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8800ooff8822

80

SIERRA CLUB V. TRUMP

Organizations identify no case from the Supreme Court or this court affirmatively holding that the zone-of-interests test does not apply to a non-APA equitable cause of action to enjoin conduct allegedly in excess of express statutory limitations on statutory authority, and I am aware of none. Indeed, it makes little sense, when evaluating a claim that Executive officials exceeded the limitations in a federal statute, not to ask whether the plaintiff is within the zone of interests protected by those statutory limitations. Cf. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (although plaintiff asserting ultra vires claim may not need to show that its interests “fall within the zones of interests of the constitutional and statutory powers invoked” by Executive officials, when “a particular constitutional or statutory provision was intended to protect persons like the litigant by limiting the authority conferred,” then “the litigant’s interest may be said to fall within the zone protected by the limitation”) (emphasis added).17 Here, those limitations are supplied by § 8005, and the Organizations are not within the zone of interests of that statute.18

17 The majority thus relies on the wrong portion of Judge Bork’s opinion in Haitian Refugee Center. See Maj. Opin. at 37–39. This case turns on a “statutory provision” that “limit[s] the authority conferred.” 809 F.2d at 811 n.14. If the Executive had contended that it had power to transfer the funds regardless of § 8005, then this case would look more like Youngstown, but no such extravagant claim has been pressed in this case. On the contrary, Defendants concede that, if the requirements of § 8005 were not met, then the transfers were unlawful.
18 Even if the Organizations were correct that the zone-of-interests test does not apply to a non-APA equitable cause of action, that would not necessarily mean that such equitable jurisdiction extends, as the Organizations suggest, to the outer limits of Article III. Declining to apply the APA’s generous zone-of-interests test might arguably render applicable the sort of narrower review of agency action that preceded the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8811ooff8822

SIERRA CLUB V. TRUMP

81

* * *

Given that each of the Organizations’ asserted theories fail, the Organizations lack any cause of action to challenge the DoD’s transfer of funds under § 8005.

IV

Alternatively, even if the Organizations had a cause of action, their claims would fail on the merits, because the challenged transfers did not violate § 8005 or § 9002. In the companion appeal, California v. Trump, the majority concluded that § 8005 and § 9002 did not authorize the transfers at issue, and I concluded that these provisions did authorize the transfers. Just as the majority “reaffirm[s] this holding here and conclude[s] that Section 8005 did not authorize the transfer of funds,” Maj. Opin. at 24, I reaffirm my previous conclusion that § 8005 and § 9002 authorized the transfers.

V

Based on the foregoing, I conclude that at least the Sierra Club has Article III standing, but that the Organizations lack any cause of action to challenge these § 8005 and § 9002 transfers. Alternatively, if the Organizations did have a cause of action, their claims fail on the merits as a matter of law because the transfers complied with the limitations in § 8005 and § 9002. I therefore would reverse the district court’s partial grant of summary judgment to the Organizations and would remand the matter with instructions to grant

APA standards articulated in Data Processing, 397 U.S. at 153. See also Clarke, 479 U.S. at 400 n.16.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8822ooff8822

82

SIERRA CLUB V. TRUMP

Defendants’ motion for summary judgment on this set of claims. Because the majority concludes otherwise, I respectfully dissent.

 
 Trump v. Sierra Club, 140 S.Ct. 1 (Mem) (2019) 204 L.Ed.2d 1170

140 S.Ct. 1 Supreme Court of the United States.
Donald J. TRUMP, President of the United States, et al. v.
SIERRA CLUB, et al.
No. 19A60 |
July 26, 2019
Opinion
The application for stay presented to Justice KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment.
Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN would deny the application.
Justice BREYER, concurring in part and dissenting in part from grant of stay.
To warrant this stay, the Government must show not just (1) a reasonable probability that the Court will grant certiorari and (2) a fair prospect that the Court will reverse, but also (3) “ ‘a likelihood that irreparable harm will result from the denial of a stay.’ ” Maryland v. King, 567 U.S. 1301, 1302, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (ROBERTS, C. J., in chambers). This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power. I would express no other view now on the merits of those questions.

Before granting a stay, however, we must still assess the competing claims of harm and balance the equities. Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U.S. 1301, 1305, 112 S.Ct. 1, 115 L.Ed.2d 1087 (1991) (Scalia, J., in chambers). This Court may, and sometimes does, “tailor a stay so that it operates with respect to only ‘some portion of the proceeding.’ ” Trump v. International Refugee Assistance Project, 582 U. S. ––––, ––––, 137 S.Ct. 2080, 2087, 198 L.Ed.2d 643 (2017) (per curiam) (quoting Nken v. Holder, 556 U.S. 418, 428, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)). In my view, this is an appropriate case to do so.
If we grant the stay, the Government may begin construction of a border barrier that would cause irreparable harm to the environment and to respondents, according to both respondents and the District Court. The Government’s only response to this claim of irreparable harm is that, if respondents ultimately prevail, the border barrier may be taken down (with what funding, the Government does not say). But this is little comfort because it is not just the barrier, but the construction itself (and presumably its later destruction) that contributes to respondents’ injury.
If we instead deny the stay, however, it is the Government that may be irreparably harmed. The Government has represented that, if it is unable to finalize the contracts by September 30, then the funds at issue will be returned to the Treasury and the injunction will have operated, in effect, as a final judgment. Respondents suggest a court could still award the Government relief after an appropriation lapses, though *2 that proposition has yet to be endorsed by this Court.
But there is a straightforward way to avoid harm to both the Government and respondents while allowing the litigation to proceed. Allowing the Government to finalize the contracts at issue, but not to begin construction, would alleviate the most pressing harm claimed by the Government without risking irreparable harm to respondents. Respondents do not suggest that they will be harmed by finalization of the contracts alone, and there is reason to believe they would not be. See, e.g., 36 Opinion of Office of Legal Counsel 11 (2012) (noting that, because of the Anti-Deficiency Act, “the government [is] legally incapable of incurring a contractual obligation to pay more money than Congress had appropriated”), online at https://www.justice.gov/file/20596/download (as last visited July 26, 2019); see also Leiter v. United States, 271 U.S. 204, 206–207, 46 S.Ct. 477, 70 L.Ed. 906 (1926); Sutton v. United States, 256 U.S. 575, 580–581, 41 S.Ct. 563, 65 L.Ed. 1099 (1921); Hooe v. United

Trump v. Sierra Club, 140 S.Ct. 1 (Mem) (2019) 204 L.Ed.2d 1170
States, 218 U.S. 322, 332–334, 31 S.Ct. 85, 54 L.Ed. 1055 (1910); Bradley v. United States, 98 U.S. 104, 116–117, 25 L.Ed. 105 (1878).
I can therefore find no justification for granting the stay in full, as the majority does. I would grant the Government’s application to stay the injunction only to the extent that the injunction prevents the Government from finalizing the contracts or taking other preparatory administrative action, but leave it in place insofar as it precludes the

Government from disbursing those funds or beginning construction. I accordingly would grant the stay in part and deny it in part.
All Citations 140 S.Ct. 1 (Mem), 204 L.Ed.2d 1170

 
 Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 1 of 21

1 Douglas N. Letter, General Counsel

2

Todd B. Tatelman, Deputy General Counsel Megan Barbero, Associate General Counsel

3

Josephine Morse, Associate General Counsel Kristin A. Shapiro, Assistant General Counsel

4 Adam A. Grogg, Assistant General Counsel

5

OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES

6

219 Cannon House Office Building Washington, D.C. 20515

7

(202) 225-9700 (telephone) (202) 226-1360 (facsimile)

8 douglas.letter@mail.house.gov

Carter G. Phillips Virginia A. Seitz Joseph R. Guerra Christopher A. Eiswerth
SIDLEY AUSTIN LLP 1501 K Street N.W. Washington, D.C. 20005 (202) 736-8000 (telephone) (202) 736-8711 (facsimile) cphillips@sidley.com

9 Counsel for Amicus Curiae the United States House of Representatives

10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12 SIERRA CLUB and SOUTHERN BORDER
13 COMMUNITIES COALITION,

14

Plaintiffs,

15

v.

16 DONALD J. TRUMP, President of the United
17 States, in his official capacity, et al.,

18

Defendants.

19

Case No. 4:19-cv-00892-HSG
M.S.J. Hearing Date: Nov. 20, 2019 Time: 10:00 AM
BRIEF OF THE UNITED STATES HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

20

21

22

23

24

25

26

27

28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 2 of 21

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................................... 1

3 BACKGROUND ............................................................................................................................. 2

4 ARGUMENT ................................................................................................................................... 7

5 THE ADMINISTRATION’S EXPENDITURE OF FUNDS UNDER SECTION 2808
6 ON CONSTRUCTION OF A BORDER WALL VIOLATES THE
APPROPRIATIONS CLAUSE ....................................................................................................... 7 7

8 I.

Defendants Have Violated the Appropriations Clause ........................................................ 7

9 II.

Section 2808 Does Not Allow Defendants to Spend More on a Border Wall than Congress Appropriated ........................................................................................................ 8

10 CONCLUSION .............................................................................................................................. 15

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
i
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 3 of 21

1 2 Cases

TABLE OF AUTHORITIES

3 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ................................................................................................................ 11

4

Reeside v. Walker,

5

52 U.S. (11 How.) 272 (1850) .................................................................................................. 7

6 Schneider v. Smith,

7

390 U.S. 17 (1968) .................................................................................................................. 13

8 Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019) .................................................................... 8, 11, 12, 13
9

10

United States v. Dreyer, 804 F.3d 1266 (9th Cir. 2015)................................................................................................... 9

11

U.S. Dep’t of the Navy v. FLRA,

12

665 F.3d 1339 (D.C. Cir. 2012) ................................................................................................ 1

13 Youngstown Sheet & Tube Co. v. Sawyer,

14

343 U.S. 579 (1952) .................................................................................................................. 7

15 Constitution

16 U.S. Const., Art. I, § 9..................................................................................................................... 1

17 Statutes
18 6 U.S.C. § 202 ................................................................................................................................. 8 19
10 U.S.C. § 2801 ............................................................................................................... 10, 11, 12 20 21 10 U.S.C. § 2808 ........................................................................................................... 1, 4, 8, 9, 10
22 10 U.S.C. § 8005 ........................................................................................................................... 10

23 18 U.S.C. § 1385 ............................................................................................................................. 9

24 31 U.S.C. § 9705 ............................................................................................................................. 9
25 50 U.S.C. § 1622 ............................................................................................................................. 6 26
Consolidated Appropriations Act, 2019, Pub L. No. 116-6, 133 Stat. 13....................................... 3 27

28
ii
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 4 of 21

1 Department of Defense and Labor, Health and Human Services, and Education Appropriations 2 Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981 ....... 14
3 Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5, 133 Stat. 10.......... 3

4 Congressional Authorities

5 H. Rep. No. 94-238 (1975) ........................................................................................................... 14
6 S. Rep. No. 94-1168 (1976) .......................................................................................................... 14 7
165 Cong. Rec. H2217-18 (daily ed. Feb. 26, 2019) ...................................................................... 6 8
165 Cong. Rec. S1882 (daily ed. Mar. 14, 2019) ........................................................................... 6 9 10 Other Authorities
11 A Guide to Federal Emergency Powers and Their Use, Brennan Ctr. (2019).............................. 14

12 Aaron Blake, Trump’s Extraordinary Oval Office Squabble with Chuck Schumer and Nancy

13

Pelosi, Annotated, Wash. Post (Dec. 11, 2018) ........................................................................ 2

14

Andrew O’Reilly, Mulvaney Says Border Wall Will Get Built, “With or Without” Funding from Congress, Fox News (Feb. 10, 2019).................................................................................... 3, 7

15

Charlie Savage, Presidents Have Declared Dozens of Emergencies, But None Like Trump’s,

16

N.Y. Times (Feb. 15, 2019) ...................................................................................................... 4

17 Department of Defense Budget Posture: Hearing Before the S. Comm. On Armed Servs., 116th

18

Cong. (2019) ............................................................................................................................... 9

19 Fact Sheet: President Donald J. Trump’s Border Security Victory, White House (Feb. 15, 2019) .................................................................................................................. 3, 4, 9
20 21 The Federalist No. 51 (James Madison) (Clinton Rossiter ed., 1961) ............................................ 1

22

Full Transcripts: Trump’s Speech on Immigration and the Democratic Response, N.Y. Times (Jan. 8, 2019)............................................................................................................................. 3

23

Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon Officials

24

Tell Congress, Quartz (Jan. 29, 2019) ...................................................................................... 9

25 Letter from Russell T. Vought, Acting Dir., Office of Mgmt. & Budget, to Sen. Richard Shelby,

26

Chairman, U.S. Senate Comm. on Appropriations (Jan. 6, 2019) ............................................ 2

27 Marianne Levine, Senate Deals Blow to Trump in Vote to Terminate Border Emergency, Politico (Mar. 14, 2019) ........................................................................................................... 6
28
iii
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 5 of 21

1 Michael J. Vassalotti & Brendan W. McGarry, Military Construction Funding in the Event of a

2

National Emergency, Cong. Research Serv., IN11017, at 2 (2019) ....................................... 12

3

Office of Mgmt. & Budget, Fiscal Year 2019: Efficient, Effective, Accountable: An American Budget: Budget of the U.S. Government 58 (2018) .................................................................. 2

4

Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) .................................................. 4, 5, 9 5

6 Rachael Bade, Immigration Storm Bears Down on Republicans, Politico (July 2, 2018).............. 2

7 Remarks by President Trump on the National Security and Humanitarian Crisis on Our Southern Border, White House (Feb. 15, 2019)................................................................................... 5, 9

8

Snapshot: A Summary of CBP Facts and Figures, U.S. Customs & Border Protection

9

(Dec. 2018)................................................................................................................................ 9

10 Southwest Border Migration FY2017, U.S. Customs & Border Protection (Dec. 15, 2017) ......... 9

11 Statement by the President, White House (Feb. 15, 2019) ............................................................. 3

12

13

Veto Message to the House of Representatives for H.J. Res. 46, White House (March 15, 2019)....................................................................................................................... 6

14 The White House, A Message from President Trump on the Border Wall, YouTube

15

(Sept. 9, 2019) ........................................................................................................................... 1

16

17

18

19

20

21

22

23

24

25

26

27

28
iv
BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 6 of 21

1

INTRODUCTION

2

The U.S. House of Representatives (House) submits this amicus curiae brief in support of

3 plaintiffs’ motion for summary judgment. The House has a compelling institutional interest in this 4
suit, which seeks to enjoin the Administration from spending federal funds without a valid 5

6 Congressional appropriation and, indeed, in defiance of a clear Congressional refusal to appropriate

7 funds in excess of $1.35 billion for a border wall.1

8

The Appropriations Clause of the Constitution, U.S. Const., Art. I, § 9, cl. 7, vests Congress

9 with “exclusive power over the federal purse,” and is “one of the most important authorities
10 allocated to Congress in the Constitution’s ‘necessary partition of power among the several 11
departments.’” U.S. Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1346 (D.C. Cir. 2012) (quoting 12
The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961)). Notwithstanding this 13 14 bedrock constitutional principle, the Administration seeks to invoke inapposite general
15 appropriations authorities to circumvent Congress’s rejection of President Trump’s demand for $5

16 billion for a border wall. As President Trump recently stated, “we’re taking money from all over

17 because as you know the Democrats don’t want us to build the wall.”2

18

Specifically, plaintiffs’ motion for partial summary judgment concerns the Administration’s

19 reprogramming of $3.6 billion from Department of Defense (DOD) military construction projects
20

21 to border wall construction under 10 U.S.C. § 2808. As demonstrated below and in plaintiffs’

22 filings, the Administration’s invocation of Section 2808 in defense of its unconstitutional spending

23 on the border wall fails. 3 Most importantly, Section 2808 does not authorize spending that

24

1 No counsel for a party authored this brief in whole or in part, and no person other than 25 amicus curiae and its counsel made a monetary contribution to its preparation or submission.

26

2 The White House, A Message from President Trump on the Border Wall, YouTube (Sept. 9, 2019), https://www.youtube.com/watch?v=0fEdhud7RJI.

3 The House fully supports plaintiffs’ request for injunctive relief in this case. The House 27 has focused this brief on the Appropriations Clause issues of greatest concern to the House and

does not address all of the arguments raised by plaintiffs to avoid burdening the Court with 28 repetitive briefing.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 1

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 7 of 21

1 Congress has blatantly refused to provide. And, in any event, Section 2808 only authorizes the

2 reprogramming of military construction funds subject to specific requirements, which the
3 Administration has not met here. 4
This Court should grant summary judgment to plaintiffs on their claims with respect to 5 6 expenditures the Administration purports to make under Section 2808 and forbid the
7 Administration from spending funds under Section 2808 on the construction of a border wall.

8

BACKGROUND

9

This dispute grew directly out of the pitched battle that the President and Congress waged

10 over the subject of this litigation—funding for a border wall. Although the President originally
11 requested “$1.6 billion to construct approximately 65 miles of border wall,”4 by the middle of 2018, 12
he was “press[ing] Republicans to give him $5 billion as a down payment on his wall.”5 Near the 13
14 end of the 115th Congress, he and Congress faced an impasse on the issue.

15

In December 2018, President Trump held a televised meeting with then-House Minority

16 Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer, to negotiate fiscal year 2019

17 appropriations for a border wall.6 During that meeting, the President reiterated his demand for $5
18 billion for a border wall. He also warned that “[i]f we don’t get what we want one way or the other, 19
whether it’s through you, through a military, through anything you want to call it, I will shut down 20
the government.”7 21

22

23

24

4 Office of Mgmt. & Budget, Fiscal Year 2019: Efficient, Effective, Accountable: An American Budget: Budget of the U.S. Government 58 (2018), https://perma.cc/MD3C-62YP.

25

5 Rachael Bade, Immigration Storm Bears Down on Republicans, Politico (July 2, 2018), https://perma.cc/D8LJ-DLTK; see also Letter from Russell T. Vought, Acting Dir., Office of

26

Mgmt. & Budget, to Sen. Richard Shelby, Chairman, U.S. Senate Comm. on Appropriations (Jan. 6, 2019), https://perma.cc/98MY-3VXF (requesting $5.7 billion for a border wall).

27

6 Aaron Blake, Trump’s Extraordinary Oval Office Squabble with Chuck Schumer and Nancy Pelosi, Annotated, Wash. Post (Dec. 11, 2018), https://perma.cc/2W9K-L2Z6.

28

7 Id.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 2

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 8 of 21

1

Congress did not yield to that threat, and on December 21, 2018, the longest Federal

2 Government shutdown in history began. More than two weeks later, President Trump addressed
3 the nation from the Oval Office, imploring Congress to “do[] its job” and “pass a bill that ends this 4
crisis.”8 Congress still refused to appropriate the funds he sought for the border wall, and on 5 6 January 25, 2019, President Trump signed a continuing resolution to fund the Government through
7 February 14, 2019.9 Over the next several weeks, a bipartisan conference committee negotiated a

8 deal to fund the government. While those negotiations were underway, the Acting White House

9 Chief of Staff stated that the southern border wall “is going to get built, with or without Congress.”10

10

Ultimately, Congress passed the Consolidated Appropriations Act, 2019, Pub L. No. 116-

11 6, 133 Stat. 13 (CAA), which appropriated only $1.375 billion for construction of fencing in the
12 13 Rio Grande Valley area of the border. Id. § 230, 133 Stat. at 28. On February 15, 2019, President

14 Trump signed the CAA into law.11 That same day, however, he expressed dissatisfaction with the

15 appropriation for border wall construction and announced that his Administration would instead

16 spend up to $8.1 billion for that purpose.12

17

The White House stated that it would draw funding from three sources to supplement the

18 amount appropriated by Congress:

19 • About $601 million from the Treasury Forfeiture Fund

20

• Up to $2.5 billion under the Department of Defense funds transferred for Support for

21

Counterdrug Activities (Title 10 United States Code, section 284)

22

23

8 Full Transcripts: Trump’s Speech on Immigration and the Democratic Response, N.Y.

24

Times (Jan. 8, 2019), https://perma.cc/UJ6C-VZ37. 9 See Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5, 133 Stat.

25 10. 10 Andrew O’Reilly, Mulvaney Says Border Wall Will Get Built, “With or Without”

26

Funding from Congress, Fox News (Feb. 10, 2019), https://perma.cc/NGM3-2FML. 11 See Statement by the President, White House (Feb. 15, 2019), https://perma.cc/WNE6-

27

C5ES. 12 See Fact Sheet: President Donald J. Trump’s Border Security Victory, White House

28 (Feb. 15, 2019) (Border Victory Fact Sheet), https://perma.cc/77SZ-GA4E.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 3

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 9 of 21

1

• Up to $3.6 billion reallocated from Department of Defense military construction

2

projects under the President’s declaration of a national emergency (Title 10 United States Code, section 2808).13

3

The White House stated that these sources “will be used sequentially and as needed.”14 This

4 motion for partial summary judgment concerns only the final purported funding source—Section
5

6 2808.

7

As a predicate to asserting authority under Section 2808(a) to spend funds on border wall

8 construction, on February 15, 2019, President Trump declared a “national emergency” at the

9 southern border:

10

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the

11

Constitution and the laws of the United States of America, including sections 201

and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare

12

that a national emergency exists at the southern border of the United States[.] . . . To

provide additional authority to the Department of Defense to support the Federal

13

Government’s response to the emergency at the southern border, I hereby declare

14

that this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction

15

authority provided in section 2808 of title 10, United States Code, is invoked and

made available, according to its terms, to the Secretary of Defense and, at the

16

discretion of the Secretary of Defense, to the Secretaries of the military

departments.15 17

18 The House is unaware of any other instance in American history where a President has declared a

19 national emergency to obtain funding after having failed to win Congressional approval for an

20 appropriation.16

21

The President’s proclamation outlines the asserted basis for the national emergency

22 declaration. It finds that “[t]he southern border is a major entry point for criminals, gang members, 23

24

25

13 Id.

26

14 Id. 15 Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) (National Emergency

27

Proclamation), https://perma.cc/7SHF-Z2XL. 16 See Charlie Savage, Presidents Have Declared Dozens of Emergencies, But None Like

28 Trump’s, N.Y. Times (Feb. 15, 2019), https://perma.cc/JG3X-J9YR.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 4

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 10 of 21

1 and illicit narcotics.”17 The proclamation concedes that this “problem of large-scale unlawful

2 migration . . . is longstanding,” but states that “the situation has worsened in certain respects in

3 recent years” because there are “sharp increases in the number of family units entering and seeking 4
entry to the United States and an inability to provide detention space for many of these aliens while 5 6 their removal proceedings are pending.”18

7

Prior to signing the proclamation, President Trump explained his decision in Rose Garden

8 remarks.19 Among other things, President Trump said that Democrats appropriated for border

9 security a “crazy” amount of money—“so much money, we don’t know what to do with it.”20
10 Democrats “didn’t even fight us on most of the stuff,” such as “[p]orts of entry.”21 “The only place 11
[Democrats] don’t want to give as much money [is the wall]—[$1.375 billion],” which “[s]ounds 12
like a lot, but it’s not so much.”22 Later he remarked: “I went through Congress. I made a deal. I 13 14 got almost $1.4 billion when I wasn’t supposed to get one dollar—not one dollar. ‘He’s not going
15 to get one dollar.’ Well, I got $1.4 billion. But I’m not happy with it.”23

16

Reiterating that he was “successful” in getting Democrats to appropriate funding for the

17 wall, President Trump explained why he nevertheless declared a national emergency: “So I did—I
18 was successful, in that sense, but I want to do it faster. I could do the wall over a longer period of 19
time. I didn’t need to do this. But I’d rather do it much faster . . . And I think that I just want to 20
get it done faster, that’s all.24 21

22

23

17 See National Emergency Proclamation, https://perma.cc/7SHF-Z2XL.

24

18 Id. 19 Remarks by President Trump on the National Security and Humanitarian Crisis on Our

25

Southern Border, White House (Feb. 15, 2019) (Feb. 15 Rose Garden Remarks), https://perma.cc/5SE7-FS7F.

26

20 Id. 21 Id.

27

22 Id. 23 Id.

28

24 Id.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 5

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 11 of 21

1

Congress swiftly rebuked President Trump’s decision to declare a national emergency at

2 the southern border and spend in excess of what Congress had appropriated on the construction of
3 a border wall. On February 26, 2019, the House adopted House Joint Resolution 46 by a vote of 4
245 to 182, terminating President Trump’s national emergency declaration pursuant to section 202 5 6 of the National Emergencies Act, 50 U.S.C. § 1622.25 On March 14, 2019, the Senate passed the
7 joint resolution by a vote of 59 to 41. 26 The joint resolution was supported by numerous

8 Republicans, such as Senator Mitt Romney, who stated that his vote of disapproval was “a vote for

9 the Constitution and for the balance of powers that is at its core.”27 President Trump vetoed the
10 joint resolution on March 15, 2019.28 11
The Administration has since then taken various steps to advance construction of the wall, 12
and most recently it authorized eleven border wall projects in California, Arizona, New Mexico 13 14 and Texas pursuant to Section 2808.29 The Secretary of Defense stated that these eleven projects
15 “are necessary to support the use of the armed forces in connection with the national emergency.”30

16 He asserted that the projects “will deter illegal entry, increase the vanishing time of those illegally

17 crossing the border, and channel migrants to ports of entry.”31 In his view, this would “reduce the
18 demand for DoD personnel and assets at the locations where the barriers are constructed and allow 19
the redeployment of DoD personnel and assets to other high-traffic areas on the border without 20

21

22

25 165 Cong. Rec. H2217-18 (daily ed. Feb. 26, 2019).

23

26 165 Cong. Rec. S1882 (daily ed. Mar. 14, 2019). 27 Marianne Levine, Senate Deals Blow to Trump in Vote to Terminate Border Emergency,

24

Politico (Mar. 14, 2019), https://perma.cc/Z2HX-7TZY. 28 Veto Message to the House of Representatives for H.J. Res. 46, White House (March 15,

25

2019), https://perma.cc/58P4-75AE. 29 See Notice of Decision by the Department of Defense to Authorize Border Barrier

26

Projects Pursuant to 10 U.S.C. § 2808, Sierra Club v. Trump, No. 4:19-cv-00892 (N.D. Cal. Sept. 3, 2019), ECF No. 201.

27

30 See id., Ex. 1, Guidance for Undertaking Military Construction Projects Pursuant to Section 2808 of Title 10, U.S. Code (Sept. 3, 2019), ECF No. 201-1.

28

31 Id., Ex. 1.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 6

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 12 of 21

1 barriers,” allowing “DoD to provide support to [the Department of Homeland Security (DHS)]

2 more efficiently and effectively.”32

3

ARGUMENT

4

THE ADMINISTRATION’S EXPENDITURE OF FUNDS UNDER SECTION 2808 ON

5

CONSTRUCTION OF A BORDER WALL VIOLATES THE APPROPRIATIONS

6

CLAUSE

7

I. Defendants Have Violated the Appropriations Clause.

8

Plaintiffs have asserted a constitutional claim under the Appropriations Clause. As the

9 history recited above makes clear, Congress rejected President Trump’s request for over $5 billion

10 for a border wall, but the Administration nonetheless decided to build the wall “without
11 Congress.” 33 This decision violates the Appropriations Clause, which dictates that the 12
Administration may spend funds—including to build a border wall—only if, and to the extent that, 13 14 Congress appropriates funds for that purpose. See, e.g., Reeside v. Walker, 52 U.S. (11 How.) 272, 15 291 (1850) (“It is a well-known constitutional provision, that no money can be taken or drawn from

16 the Treasury except under an appropriation by Congress.”).

17

Having precipitated the longest government shutdown in history because Congress would

18 not appropriate the amount of funds it wanted for a border wall, the Administration now claims to
19 have found “secreted in the interstices of legislation the very grant of power which Congress 20
consciously withheld.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) 21 22 (Frankfurter, J., concurring). As relevant here, the Administration relies on Section 2808. But this
23 statute does not authorize spending in excess of the funds that Congress has appropriated,

24 particularly where, as here, Congress has denied additional expenditures for a particular purpose.

25

26

27

32 Id.

28

33 Andrew O’Reilly, Mulvaney Says Border Wall Will Get Built, ‘With or Without’ Funding from Congress, Fox News (Feb. 10, 2019), https://perma.cc/NGM3-2FML.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 7

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 13 of 21

1

II. Section 2808 Does Not Allow Defendants to Spend More on a Border Wall

2

than Congress Appropriated.

3

Defendants are not authorized to spend federal funds on the construction of a border wall

4 under Section 2808. As this Court correctly recognized, “[u]nder the circumstances, it is unclear

5 how border barrier construction could reasonably constitute a ‘military construction project’ such

6 that Defendants’ invocation of Section 2808 would be lawful.” Sierra Club v. Trump, 379 F. Supp.
7 3d 883, 919 (N.D. Cal. 2019); see id. at 921 (expressing “concern[] with Defendants’ arguments”
8 on Section 2808 but determining at that time that plaintiffs had not shown irreparable harm because
9
10 the Section 2808 construction project locations had not yet been specified).

11

Section 2808 provides:

12

In the event of a declaration of war or the declaration by the President of a national

emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that

13

requires use of the armed forces, the Secretary of Defense, without regard to any other

14

provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not

15

otherwise authorized by law that are necessary to support such use of the armed forces.

Such projects may be undertaken only within the total amount of funds that have been

16

appropriated for military construction, including funds appropriated for family housing,

17

that have not been obligated.

18 10 U.S.C. § 2808(a). Section 2808(a) thus authorizes the Secretary of Defense to redirect

19 unobligated military construction funds to other projects subject to three specific limitations:

20 (1) there must be a national emergency “that requires use of the armed forces,” (2) the funding must

21 be spent on a “military construction project[],” and (3) the project must be “necessary to support
22 [the] use of the armed forces.” Id. 23
1. In order to transfer funds under Section 2808, there must be a national emergency that 24 25 “requires the use of the armed forces”—not simply use of the armed forces’ money. There is no
26 such national emergency here.

27

Border security is a matter for domestic law enforcement, specifically DHS and Customs

28 and Border Patrol (CBP). See 6 U.S.C. § 202. CBP is the “largest federal law enforcement agency

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 8

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 14 of 21

1 in the United States,” and its mission is to “safeguard America’s borders.” 34 Indeed, the

2 Administration recognized this fact when it used $601 million from the Treasury Forfeiture Fund35
3 to construct a border wall, because money from this fund can be applied only to “law enforcement 4
activities.” 31 U.S.C. § 9705 (g)(4)(B). Moreover, the military is expressly prohibited from 5 6 making “direct active use of Federal troops” to execute domestic law under the Posse Comitatus
7 Act, 18 U.S.C. § 1385. See also United States v. Dreyer¸ 804 F.3d 1266, 1272 (9th Cir. 2015). The

8 Administration has made no showing that armed forces are “required” to address the described

9 “emergency.” Indeed, the then-Acting Secretary of Defense has acknowledged that the situation at

10 the border does not constitute “a military threat,”36 and another top-level defense official has

11 testified that “[n]one of the capabilities that we are providing [at the southern border] are combat
12 capabilities.”37
13

14

President Trump’s proclamation asserts that the situation at the border has “worsened” due

15 to “sharp increases in the number of family units entering and seeking entry to the United States

16 and an inability to provide detention space.”38 But this trend has long been apparent,39 and the

17 humanitarian and other issues it raises are a matter for domestic law enforcement, not the armed
18 forces. And there is no argument that the circumstances at the border require even the use of DOD 19
money (as distinct from armed forces personnel): The President has stated that the Democrats 20
appropriated for border security “so much money, we don’t know what to do with it.”40 21

22

23

34 See, e.g., Snapshot; A Summary of CBP Facts and Figures, U.S. Customs & Border Protection (Dec. 2018), https://perma.cc/H3JS-PH9C.

24

35 See Border Victory Fact Sheet, https://perma.cc/77SZ-GA4E. 36 Department of Defense Budget Posture: Hearing Before the S. Comm. On Armed Servs.,

116th Cong. (2019) (statement of Patrick Shanahan, Acting Sec’y, Dep’t of Def.) (pre-published

25 transcript available at https://perma.cc/XX2K-J8AX).

26

37 Heather Timmons, The US Border Situation Isn’t a National Emergency, Pentagon Officials Tell Congress, Quartz (Jan. 29, 2019), https://perma.cc/S4V6-VZDG.

38 National Emergency Proclamation, https://perma.cc/7SHF-Z2XL.

27

39 See, e.g., Southwest Border Migration FY2017, U.S. Customs & Border Protection (Dec.

15, 2017), https://perma.cc/8GW5-FD3K.

28

40 Feb. 15 Rose Garden Remarks, https://perma.cc/5SE7-FS7F.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 9

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 15 of 21

1

In sum, the purported emergency here—a surge in illegal immigration—does not “require[]

2 the use of the armed forces.” 10 U.S.C. § 2808(a). It requires, if anything, enhanced domestic law
3 enforcement. As President Trump admits, Congress has appropriated a “crazy” amount of money 4
for this purpose. Congress has simply chosen to allocate most of that money to border security 5 6 activities that do not include construction of a border wall. The Administration cannot plausibly
7 claim that the armed forces are nevertheless “required” so that DOD can build a wall that Congress

8 deemed unnecessary.

9

2. In any event, a border wall is not a “military construction project” as that term is defined

10 by statute. Section 2801(a) defines “military construction” as “any construction, development,
11 conversion, or extension of any kind carried out with respect to a military installation.” A “military
12 installation,” in turn, is “a base, camp, post, station, yard, center, or other activity under the
13
14 jurisdiction of the Secretary of a military department.” 10 U.S. C. § 2801(c)(4); see id. § 2801(b)

15 (“military construction project” includes “all military construction work . . . necessary to produce

16 a complete and usable facility or a complete and usable improvement to an existing facility”).

17

The Administration’s border wall projects do not constitute “military construction” because,

18 with the exception of two projects on the Barry M. Goldwater Range, the border wall projects are
19 not being “carried out with respect to a military installation.” Simply put, the southern border is
20 21 not a militarized zone. It is the responsibility of DHS and CBP to ensure border security, not DOD.

22 See supra at 9. Indeed, the Administration has previously invoked 10 U.S.C. § 8005 as a source of

23 transfer authority to transfer DOD funds for purposes of other border wall projects, and that section

24 prohibits transfers for purposes of “military construction.” See Brief of the U.S. House of
25 Representatives as Amicus Curiae in Support of Plaintiffs’ Motion for a Preliminary Injunction at 26 2-3, 11, Sierra Club v. Trump, No. 4:19-cv-00892 (N.D. Cal. Apr. 15, 2019), ECF No. 47. 27

28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 10

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 16 of 21

1

When DOD approved the projects under Section 2808, the border land at issue here was not

2 even under its jurisdiction, let alone a “military installation.” Attempting to circumvent this
3 threshold failing in its Section 2808 justification, the Administration intends to transfer federal 4
lands along the border to DOD or to have DOD acquire or condemn private land along the border 5 6 and to argue that this newly acquired land should be considered a “military installation.” See Notice
7 of Filing of Administrative Record for Section 2808 Border Barrier Projects, Sierra Club v. Trump,

8 No. 4:19-cv-00892 (N.D. Cal. Sept. 16, 2019), ECF No. 206 (Administrative Record), Part 1 at 3.

9 But even if these land acquisitions were valid, they do not transform the planned border wall
10 construction into military construction projects. As explained, a “military installation,” is defined 11
to mean “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the 12
Secretary of a military department.” 10 U.S.C. § 2801(c)(4). The border lands at issue here are 13 14 plainly not military bases, posts, stations, yards or centers—regardless of whether they are owned
15 by DOD. See Sierra Club, 379 F. Supp. 3d at 920 (“Defendants make no attempt to characterize

16 the U.S.-Mexico border or a border barrier as a ‘base, camp, post, station, yard, [or] center.’ Nor

17 could they.” (emphasis added)). And, as this Court has correctly noted, “Section 2801 likely
18 precludes treating the southern border as an ‘other activity.’” Id. 19
“The term ‘other activity’ appears after a list of closely related types of discrete and 20 21 traditional military locations: ‘a base, camp, post, station, yard, [and] center.’” Id. at 921; see
22 Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (“[W]here general words follow

23 specific words in a statutory enumeration, the general words are construed to embrace only objects

24 similar in nature to those objects enumerated by the preceding specific words.” (quotation marks

25 omitted)). “Had Congress intended for ‘other activity’ in Section 2801(c)(4) to be so broad as to
26 transform literally any activity conducted by a Secretary of a military department into a ‘military 27
installation,’ there would have been no reason to include a list of specific, discrete military 28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 11

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 17 of 21

1 locations.” Sierra Club, 379 F. Supp. 3d at 921. As this Court explained, “[i]t is thus proper to
2 construe ‘other activity’ as referring to similar discrete and traditional military locations.” Id. It 3 remains difficult to “see how the U.S.-Mexico border could fit this bill.” Id. The administrative 4
record does not suggest that troops are stationed on the land where the border wall projects will be 5 6 built or that such land is otherwise in use as a military post, station, yard, or center, or other similar
7 military location. Simply put, “in context and with an eye toward the overall statutory scheme,

8 nothing demonstrates that Congress ever contemplated that ‘other activity’ has such an unbounded

9 reading that it would authorize Defendants to invoke Section 2808 to build a barrier on the southern
10 border.” Id. 11
Finally, accepting the Administration’s argument that “military construction projects” 12
should include land that DOD is acquiring for the purpose of constructing a border wall and 13 14 construction of that wall for use by the Customs and Border Patrol—not the military—circumvents
15 the prohibitions of Section 2808 and does not represent a good faith reading of the statute’s

16 requirements. The House is aware of no prior use of Section 2808 funds for a construction project

17 that will not be used by the military.41 Using Section 2808 funds to obtain land for DOD to
18 purportedly create new military installations to build facilities that will be used for non-military 19
purposes is inconsistent with the intent of Section 2808, and in clear defiance of Section 2808’s 20 21 limitation “to construction related to a military installation”—i.e., construction on “types of discrete
22 and traditional military locations.” Sierra Club, 379 F. Supp. 3d at 920, 921. This Court should

23 not endorse the Administration’s obvious attempt to circumvent the purposes of the statute.

24

25

26

41 Previous projects under Section 2808 have included the construction of barracks hangers and improvements to airfield runways. See Michael J. Vassalotti & Brendan W. McGarry, Military

27

Construction Funding in the Event of a National Emergency, Cong. Research Serv., IN11017, at 2 (2019), https://perma.cc/75UP-ANE3 (listing all military construction projects under Section 2808

28 between 2001 and 2014).

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 12

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 18 of 21

1

3. A border wall is not “necessary to support [the] use of the armed forces.” DHS describes

2 its mission as “gain[ing], maintain[ing], and expand[ing] operational control of the U.S. Border
3 between ports of entry,” and views border barriers as a “critical capability[y]” to achieve this 4
mission.42 Over the past year and a half, the President has ordered a few thousand troops to assist 5 6 the DHS and the CBP at the border. Consistent with the Posse Comitatus Act, however, troops are
7 limited to “support roles that relieve DHS personnel of non-law enforcement duties (e.g., logistics,

8 planning, and intelligence analysis) or that provide monitoring and detection support (i.e., operating

9 mobile surveillance camera units or providing aerial reconnaissance).”43

10

While DOD has asserted that a border wall is “necessary” to support the troops because it

11 “will reduce the demand” for the troops at barrier locations,44 this assertion falls far short of 12
demonstrating that the border wall is necessary to support the use of the armed forces. It is, at best, 13

14 an argument that a border wall will reduce the need for domestic law enforcement at the border.

15 Put differently, the fact that the border wall will make it easier for DHS and CBP to do their jobs—

16 and potentially reduce or change the way that DOD back-up is used—does not mean that the wall

17 is “necessary to support [the] use of the armed forces.” The relationship between the wall and the

18 “armed forces” is too indirect and attenuated to satisfy this standard of necessity.

19 * * *
20

21

The Administration’s expenditure of Section 2808 funds defies the mandate of Congress

22 and infringes on the Congressional power of the purse. This Court should not “stretch th[e] words

23 [of Section 2808’s three prerequisites] beyond their normal meaning to give legal cover to the

24 Administration’s transgression.” Schneider v. Smith, 390 U.S. 17, 27 (1968). Section 2808 is one 25

26

27

42 Administrative Record, Part 1 at 42, 54. 43 Id., Part 1 at 42.

28

44 Id., Part 1 at 47.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 13

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 19 of 21

1 of the scores of statutes that the President may invoke by declaring a national emergency under the

2 National Emergencies Act.45 The National Emergencies Act was “not intended to grant additional
3 authority to the President,” but instead to make clear that “[t]he President can only exercise those 4
powers delegated to him in other statutes.”46 Section 2808 thus limits the circumstances and 5 6 manner in which the President can exercise this transfer authority. If courts fail to enforce these
7 limits, as a practical matter, the President’s emergency authority will be unbounded.

8

Indeed, accepting the Administration’s interpretation of Section 2808 and other purported

9 authorities for the transfer of DOD funds would transform the shutdown of the federal government
10 into mere political theater. The Administration would have known when 2019 DOD appropriations 11
were passed on September 28, 2018, see Pub. L. No. 115-245, 132 Stat. 2981, that DOD could 12
transfer billions of dollars in wall funding under the provisions it has now invoked. If, as the 13 14 Administration claims, it possessed the authority after September 2018 to transfer these funds for
15 border wall construction, it surely would not have precipitated the longest government shutdown

16 in history because Congress refused to appropriate the money it requested for that purpose. The

17 Administration’s actions at the end of last year speak far louder than its arguments before this Court
18 now. 19
This Court should hold that the Administration’s expenditure of up to $3.6 billion under 20 21 Section 2808 for border wall construction violates the Appropriations Clause and is otherwise
22 unauthorized.

23

CONCLUSION

24

For the foregoing reasons, plaintiffs’ motion for partial summary judgment should be

25 granted. 26

27

45 See A Guide to Federal Emergency Powers and Their Use, Brennan Ctr. (2019),

https://perma.cc/3HVQ-YQAA.

28

46 S. Rep. No. 94-1168, at 4 (1976); accord H. Rep. No. 94-238, at 5-6 (1975).

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG) 14

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 20 of 21

1

2

3 CARTER G. PHILLIPS

4

VIRGINIA A. SEITZ JOSEPH R. GUERRA

5 CHRISTOPHER A. EISWERTH

6 SIDLEY AUSTIN LLP

1501 K STREET N.W. 7 WASHINGTON, D.C. 20005

8

(202) 736-8000 (telephone) (202) 736-8711 (facsimile)

9 cphillips@sidley.com

10

11

12

13

14

15

Respectfully submitted,
/s/ Douglas N. Letter DOUGLAS N. LETTER General Counsel TODD B. TATELMAN Deputy General Counsel MEGAN BARBERO Associate General Counsel JOSEPHINE MORSE Associate General Counsel KRISTIN A. SHAPIRO Assistant General Counsel ADAM A. GROGG Assistant General Counsel
OFFICE OF GENERAL COUNSEL* U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) douglas.letter@mail.house.gov
Counsel for Amicus Curiae the United States House of Representatives

16 October 18, 2019 17

18

19

20

21

22

23

24

25

26 * Attorneys for the Office of General Counsel for the U.S. House of Representatives are “entitled, 27 for the purpose of performing the counsel’s functions, to enter an appearance in any proceeding
before any court of the United States or of any State or political subdivision thereof without 28 compliance with any requirements for admission to practice before such court.” 2 U.S.C. § 5571.

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

Case 4:19-cv-00892-HSG Document 230 Filed 10/22/19 Page 21 of 21

1

CERTIFICATE OF SERVICE

2

I hereby certify that on October 18, 2019, I caused the foregoing document to be filed via

3 the U.S. District Court for the Northern District of California’s CM/ECF system, which I

4 understand caused service on all registered parties.

5

6

/s/ Douglas N. Letter Douglas N. Letter

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE (4:19-cv-00892-HSG)

 
 Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 1 of 47

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

STATE OF CALIFORNIA, et al.,

8

Plaintiffs,

9

v.

10

DONALD J. TRUMP, et al.,

11

Defendants.

12

SIERRA CLUB, et al.,

13

Plaintiffs,

Case No. 19-cv-00872-HSG
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Re: Dkt. No. 220, 236
Case No. 19-cv-00892-HSG

14

v.

15

DONALD J. TRUMP, et al.,

16

Defendants.

17

Re: Dkt. Nos. 210, 236

18

Pending before the Court are cross-motions for partial summary judgment in two related

19 cases, State of California v. Trump, No. 19-cv-00872-HSG, and Sierra Club v. Trump, No. 19-cv20 00892-HSG.1 Plaintiffs in both cases challenge Defendants’ proposed reallocation of $3.6 billion

21 in military construction funds under 10 U.S.C. § 2808 (“Section 2808”) to build a wall along the

22 southern border of the United States. Section 2808 is just one of several alternative sources of

23

24

1 Plaintiffs in State of California v. Trump are a coalition of nine states, including California, Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, Wisconsin, and the

25

Commonwealth of Virginia (“State Plaintiffs”). Plaintiffs in Sierra Club v. Trump include the Sierra Club and the Southern Border Communities Coalition (“Sierra Club Plaintiffs”). Because

26

Plaintiffs’ motions for summary judgment overlap considerably, the Court refers collectively to both State and Sierra Club Plaintiffs in this order as “Plaintiffs,” unless otherwise specified.

27

Defendants in both cases include President Donald J. Trump and certain of his cabinet members, in their official government capacities. The Court refers to them collectively as “Defendants” in

28

this order to avoid confusion in light of the apparent conflict between the Executive and Legislative branches of the government in these cases.

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 2 of 47

United States District Court Northern District of California

1 funding that Defendants identified for border construction after Congress appropriated only

2 $1.375 billion for that purpose in the Consolidated Appropriations Act of 2019 (“CAA”), far less

3 than the $5.7 billion the President ultimately requested. Compare California, 19-cv-00872-HSG,

4 Dkt. No. 59-4, Ex. 25, with CAA, Pub. L. No. 116-6, 133 Stat. 13 (2019). Plaintiffs assert that

5 Defendants’ reliance on Section 2808—like Defendants’ other alternative funding plans—

6 improperly circumvents the CAA and Congress’ appropriations power under the Constitution.2

7 Plaintiffs therefore seek declaratory and injunctive relief, prohibiting Defendants from using funds

8 under Section 2808 to build border barriers.

9

As the Court has previously explained, these two cases are not about—and the Court offers

10 no opinion regarding—whether the challenged border barrier construction plan is sound policy.

11 See City and County of San Francisco v. United States Citizenship and Immigration Services, No.

12 19-17213, (9th Cir. Dec. 5, 2019), Dkt. No. 27 at 2–3 (Bybee, J., concurring) (explaining that

13 “even as we are embroiled in these controversies, no one should mistake our judgments for our

14 policy preferences,” and that “our thoughts on the efficacy of the one approach versus the other

15 are beside the point, since our business is not to judge the wisdom of the National Government’s

16 policy” (quotation omitted)); Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (indicating that the

17 Supreme Court “express[ed] no view on the soundness of the policy” at issue there); In re Border

18 Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092, 1102 (S.D. Cal. 2018) (noting that the court

19 “cannot and does not consider whether underlying decisions to construct the border barriers are

20 politically wise or prudent”).3 Neither does the Court here address any of the other sources of

21 funding that Defendants have identified to pay for the border barrier construction. Rather, the

22 issues currently before the Court are narrow: whether Defendants’ proposed plan for funding

23

24

2 The Appropriations Clause of the Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art I., § 9, cl. 7.

25

3 There also appears to be no dispute between the Executive and Congress that at least some border barrier construction is warranted, as Congress has historically appropriated funds for this

26

purpose. For fiscal year 2018, for example, Congress appropriated $1.571 billion for physical barriers and associated technology along the southwest border. See California, No. 19-cv-00872-

27

HSG, Dkt. No. 161; see also Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) 132 Stat. 348 (2018). And even for fiscal year 2019, the Administration initially

28

requested $1.6 billion for border barrier construction, see California, No. 19-cv-00872-HSG, Dkt. No. 112-1, Ex. 51 at 58, and Congress appropriated $1.375 billion, see CAA, 133 Stat. 13.

2

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 3 of 47

United States District Court Northern District of California

1 border barrier construction under Section 2808 (1) exceeds the Executive Branch’s statutory and

2 constitutional authority; (2) is arbitrary and capricious under the Administrative Procedures Act, 5

3 U.S.C. §§ 551 et seq., (“APA”); and (3) violates the National Environmental Policy Act

4 (“NEPA”).

5

Nevertheless, the Court assesses these issues against a complicated and unprecedented

6 backdrop. As an initial matter, presidents have only invoked Section 2808 twice since it was

7 enacted in 1982. See Michael J. Vassalotti & Brendan W. McGarry, Military Construction

8 Funding in the Event of a National Emergency, Cong. Research Serv., IN11017 (Jan. 11, 2019) at

9 2–3; Jennifer K. Elsea, Edward C. Lieu, & Jay B. Sykes, Can the Department of Defense Build

10 the Border Wall, Cong. Research Serv., LSB10242 (Feb. 18, 2019) at 3–4. Of the military

11 construction projects funded through Section 2808, only one was located in the United States, and

12 that project related to securing facilities holding weapons of mass destruction shortly after the 9/11

13 attacks. See, e.g., Vassalotti, at 1–3; see also Sierra Club, 19-cv-00892-HSG, Dkt. No. 236-5, Ex.

14 5. And critically, a president has never before invoked Section 2808 to secure funding for projects

15 that Congress specifically declined to fund in its appropriations judgment. Id. Yet here the

16 President has been explicit in his intention to obtain funds for border barrier construction, with or

17 without Congress. See, e.g., California, 19-cv-00872-HSG, Dkt. No. 59-4, Exs. 13, 21; Sierra

18 Club, 19-cv-00892-HSG, Dkt. No. 36-3, Ex. C. Accordingly, the President invoked Section 2808

19 the day after Congress passed the CAA, which provided limited funding for, and contained

20 restrictions regarding funding for, border barrier construction. See CAA, § 230(a)(1), 133 Stat. at

21 28.

22

The Court heard argument on these motions on November 20, 2019. See California, 19-

23 cv-00872-HSG, Dkt. No. 250; Sierra Club, 19-cv-00892-HSG, Dkt. No. 248. After carefully

24 considering the parties’ arguments, the Court GRANTS IN PART Sierra Club Plaintiffs’ partial

25 motion for summary judgment; GRANTS IN PART State Plaintiffs’ partial motion for summary

26 judgment; and DENIES Defendants’ motions.

27 //

28 // 3

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 4 of 47

United States District Court Northern District of California

1

I. BACKGROUND

2

A. Factual Background

3

The Court has detailed the lengthy history of these cases in its prior orders, and

4 incorporates the factual background in full. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No.

5 144. The Court also briefly summarizes and notes subsequent factual developments as relevant to

6 this order.

7

i. Emergency Declaration

8

Following the longest partial government shutdown in the nation’s history, Congress

9 passed the CAA on February 14, 2019, making available $1.375 billion “for the construction of

10 primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.”

11 See CAA, § 230(a)(1), 133 Stat. at 28. On February 15, 2019, the President signed the CAA into

12 law. See generally id. That same day, the President invoked his authority under the National

13 Emergencies Act (“NEA”), Pub. L. 94–412, 90 Stat. 1255 (1976) (codified as amended at 50

14 U.S.C. §§ 1601–51), and declared that “a national emergency exists at the southern border of the

15 United States.” See Proclamation No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019) (“Proclamation

16 No. 9844”). The proclamation further “declar[ed] that this emergency requires use of the Armed

17 Forces,” and made available “the construction authority provided in [S]ection 2808.” Id. When

18 announcing the proclamation, the President explained that he initially “went through Congress”

19 for the $1.375 billion in funding, but was “not happy with it.” See California, No. 19-cv-00872-

20 HSG, Dkt. No. 59-4, Ex. 50.

21

Since that time, Congress has sought to terminate the national emergency on two separate

22 occasions. On March 14, 2019, Congress passed a joint resolution to terminate the emergency

23 declaration. See H.R.J. Res. 46, 116th Cong. (2019). On March 15, 2019, the President vetoed

24 the joint resolution. See Veto Message to the House of Representatives for H.J. Res. 46, The

25 White House (Mar. 15, 2019), https://www.whitehouse.gov/briefings-statements/veto-message-

26 house-representatives-h-j-res-46/. Congress failed to override the President’s veto. See 165 Cong.

27 Rec. H2799, H2814–15 (2019). On September 27, 2019, Congress passed a second joint

28 resolution to terminate the emergency declaration. See S.J. Res. 54, 116th Cong. (2019). And on 4

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 5 of 47

United States District Court Northern District of California

1 October 15, 2019, the President vetoed the second joint resolution. See S.J. Res. 54 Veto Message,

2 The White House (Oct. 15, 2019), https://www.whitehouse.gov/presidential-actions/s-j-res-54-

3 veto-message/ (“S.J. Res. 54 Veto Message”). Again, Congress failed to override the veto. See

4 S.J. Res. 54, 116 Cong. (2019). Congress has an ongoing obligation to consider whether to

5 terminate the emergency every six months, but the President’s declaration of a national emergency

6 remains in effect.4 See 50 U.S.C. § 1622(a)–(b).

7

ii. Military Construction Funds and Diverted Projects

8

On February 11, 2019, prior to the President’s proclamation and invocation of Section

9 2808, the Chairman of the Joint Chiefs of Staff submitted a preliminary assessment to the Acting

10 Secretary of Defense regarding whether and how military construction projects could support the

11 use of the armed forces in addressing a national emergency at the southern border. See California,

12 No. 19-cv-00872-HSG, Dkt. No. 212 (“Administrative Record” or “AR”)5 at 119–124. The

13 memorandum explained that the Department of Homeland Security (“DHS”) identified specific

14 geographic areas in which border barriers could allow Department of Defense (“DoD”) personnel

15 and resources “to be employed more efficiently” and “reduce DHS requirements for DoD

16 support.” Id. However, although the President authorized use of military construction funds

17 under Section 2808 in his February 15 proclamation, Defendants did not exercise this authority for

18 several months.

19

Instead, in the intervening months, the Chairman of the Joint Chiefs of Staff submitted a

20 supplemental assessment on May 6, 2019, regarding military construction projects at the southern

21

22

4 Under the NEA as initially drafted in 1976, the national emergency would have ended once Congress passed the first joint resolution. The NEA did not require a presidential signature on the

23

joint resolution, nor was it subject to a presidential veto, until the Supreme Court ruled in INS v. Chadha that the president must have the power to approve or veto such congressional acts. See

24

462 U.S. 919, 944–58 (1983). 5 The parties do not oppose the Court’s consideration of the administrative record, see California,

25

No. 19-cv-00872-HSG, Dkt. Nos. 212-2, 212-3, 212-4, or the Plaintiffs’ request to take judicial notice of various documents. The Court finds it may take judicial notice of documents from the

26

administrative record and Plaintiffs’ requests that are cited in this order, all of which are: (1) statements of government officials or entities that are not subject to reasonable dispute; or

27

(2) other public records and government documents available on reliable internet sources, such as government websites. See DeHoog v. Anheuser-Busch InBev SA/NV, 899 F.3d 758, 763 n.5 (9th

28

Cir. 2018) (taking “judicial notice of government documents, court filings, press releases, and undisputed matters of public record”).

5

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 6 of 47

United States District Court Northern District of California

1 border. See AR at 59–70. In the updated memorandum, the Chairman again concluded that such

2 construction “can reasonably be expected to support the use of the armed forces by enabling more

3 efficient use of DoD personnel, and may ultimately reduce the demand for military support over

4 time.” See id. at 60. The Chairman explained that although “any border barrier construction

5 supports the use of the armed forces on the border to some extent,” the Joint Chiefs prioritized

6 fifteen projects, totaling $3.6 billion. See id. at 63. On May 15, 2019, Defendants informed the

7 Court that the Under Secretary of Defense had identified existing military construction project

8 funding to divert for border barrier construction pursuant to Section 2808, but that the Acting

9 Secretary of Defense had “not yet decided to undertake or authorize any barrier construction

10 projects under § 2808.” See California, 19-cv-00872-HSG, Dkt. No. 151 at 3.

11

Then on September 3, 2019, the Secretary of Defense announced that he had decided to

12 authorize eleven specific border barrier construction projects in California, Arizona, New Mexico,

13 and Texas, pursuant to Section 2808. See California, 19-cv-00872-HSG, Dkt. Nos. 206, 206-1,

14 Ex. 1. In doing so, he reiterated that these projects “will reduce the demand for DoD personnel

15 and assets to other high-traffic areas on the border without barriers.” See id., Dkt. No. 206-1, Ex.

16 1. He concluded that “[i]n short, these barriers will allow DoD to provide support to DHS more

17 efficiently and effectively.” Id.

18

Collectively, the eleven projects total $3.6 billion and include 175 miles of border barrier

19 construction across four states. Id. These projects fall into three categories:

20

• Two projects on the Barry M. Goldwater Range military installation in Arizona;

21

• Seven projects on federal public domain land that is under the jurisdiction of the

22

Department of the Interior; and

23

• Two projects on non-public land that would need to be acquired through either

24

purchase or condemnation before construction could begin.

25 See id., Dkt. Nos. 206 at 2–4, 206-1, Ex. 1. The Secretary of Defense authorized the Secretary of

26 the Army “to expeditiously undertake the eleven border barrier military construction projects,”

27 including taking the necessary steps to acquire the public domain and non-public land as part of

28 “the Army’s real property inventory, either as a new military installation or as part of an existing 6

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 7 of 47

United States District Court Northern District of California

1 military installation.” See id., Dkt. No. 206-1, Ex. 1 at 1; see also AR at 3–6, 9–10, 30–31. That

2 same day, in a briefing on the use of Section 2808, DoD representatives explained that the $3.6

3 billion would “all go to adding significantly new capabilities to DHS’s ability to prevent illegal

4 entry.” See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210-2, Ex. 17 at 5.

5

Two days later, on September 5, 2019, the Secretary of Defense identified which military

6 construction projects DoD intended to defer in order to fund the border barrier construction

7 projects. See California, 19-cv-00872-HSG, Dkt. Nos. 207, 207-1, Ex. 1. In total, the Secretary

8 of Defense authorized diverting funding from 128 military construction projects, domestically and

9 abroad. See id., Dkt. No. 207-1, Ex. 1. Sixty-four of the defunded military construction projects

10 are located within the United States; and nineteen projects, totaling over $500 million, are within

11 Plaintiff States California, Colorado, Hawaii, Maryland, New Mexico, Oregon, Virginia, and

12 Wisconsin. See id.; see also id., No. 19-cv-00872-HSG, Dkt. No. 220-5, Exs. 2–19.

13

The Secretary of Defense explained that he sought to identify projects for defunding and

14 deferral based on the projects’ timing, and thus the 128 projects “are not scheduled for award until

15 fiscal year 2020 or later.” See AR at 13. Doing so, he stated, would “provide [DoD] time to work

16 with [Congress] to determine opportunities to restore funds for these important military

17 construction projects . . . .” California, 19-cv-00872-HSG, Dkt. No. 206-2, Ex. 2 at 2; cf. S. 1790,

18 116th Cong. § 2906 (“Replenishment of Certain Military Construction[] Funds”). The deferred

19 projects include rebuilding hazardous materials warehouses at Norfolk and the Pentagon;

20 replacing a daycare facility for servicemembers’ children at Joint Base Andrews, which reportedly

21 suffers from “sewage backups, flooding, mold and pests”; and improving security to comply with

22 anti-terrorism and force protection standards at Kaneohe Bay. See Sierra Club, No. 19-cv-00892-

23 HSG, Dkt. No. 202-1, Ex. 1; id., Dkt. No. 210-2, Ex. 18; see also California, No. 19-cv-00872-

24 HSG, Dkt. No. 232 (Brief of Amici Curiae Iraq and Afghanistan Veterans of America) (“IAVA

25 Brief”).

26

In accordance with the Secretary of Defense’s directive, the Secretary of the Army has

27 taken steps over the past few months to obtain administrative jurisdiction over some of the land

28 for the border barrier construction projects. On October 7, 2019, the Secretary of the Interior 7

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 8 of 47

United States District Court Northern District of California

1 announced the transfer of approximately 560 acres of federal lands to the Department of the Army

2 for a period of three years for border barrier construction in Arizona, California, and New Mexico.

3 See California, No. 19-cv-00872-HSG, Dkt. No. 220-5, Ex. 1. Additionally, on October 8, 2019,

4 the Secretary of the Army issued General Order No. 2019-36, which automatically assigns all land

5 transferred to the Army for Section 2808 border barrier construction projects to the U.S. Army

6 Garrison Fort Bliss, Texas, irrespective of the location of the land. See id., Dkt. No. 236-7, Ex. 7.

7

During the hearing on the motions for partial summary judgment, Defendants’ counsel also

8 represented to the Court that there have been two contracts awarded related to the border barrier

9 construction projects. See California, No. 19-cv-00872-HSG, Dkt. No. 254 at 81:2–24. The first

10 contract relates to the projects on the Barry M. Goldwater Range, in Arizona: that contract was

11 awarded on November 6, 2019, and ground disturbing activity was anticipated to start no earlier

12 than November 27, 2019. Id. The second contract relates to a project in San Diego County,

13 California: that contract was awarded on November 19, 2019, and ground disturbing activity was

14 anticipated to start no earlier than December 9, 2019. Id.

15

B. Procedural History

16

Following the passage of the CAA and the President’s national emergency declaration in

17 February 2019, the State and Sierra Club Plaintiffs filed suit challenging Defendants’ anticipated

18 diversion of federal funds for border barrier construction pursuant to several statutory provisions.

19 These include reallocating funds from the Treasury Forfeiture Fund; DoD’s Appropriations Act of

20 2019 under Section 8005 and 10 U.S.C. § 284; and DoD appropriations for military construction

21 projects under Section 2808. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 36-7, Ex. G at 2–

22 4; see also id., Dkt. No. 64-8, ¶¶ 5–6.

23

The Court first preliminarily enjoined Defendants’ use of funds for two border barrier

24 construction projects in New Mexico and Arizona under Section 8005. See Sierra Club, No. 19-

25 cv-00892-HSG, Dkt. No. 144. The Court reasoned that Plaintiffs were likely to show that (1) the

26 language and purpose of Section 8005 precluded Defendants’ transfer and use of funds for

27 construction of border barriers because Congress had already explicitly denied those requested

28 funds; (2) the need for such funds was not unforeseen as the Administration had requested such 8

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 9 of 47

United States District Court Northern District of California

1 funding as early as 2018; and (3) Defendants’ proposal likely would violate the Constitution’s

2 separation of powers principles to the extent it bypassed Congress’ appropriations authority. Id.

3 At the time, Sierra Club Plaintiffs also sought a preliminary injunction to preclude Defendants’

4 proposed use of Section 2808. See id., Dkt. No. 29 at 13–15, 23–25. However, the Court found

5 that Plaintiffs could not show irreparable harm as needed to warrant an injunction because as of

6 May 2019, Defendants had not yet made a final decision as to whether to use Section 2808 funds.

7 Id., Dkt. No. 144 at 51–53.

8

The Court subsequently affirmed its ruling on Defendants’ use of Section 8005, granting in

9 part the motions for partial summary judgment filed by California, New Mexico, and the Sierra

10 Club Plaintiffs, and denying Defendants’ motions for partial summary judgment. See California,

11 No. 19-cv-00872-HSG, Dkt. No. 185; Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 185. The

12 Court entered a permanent injunction, prohibiting Defendants from taking any action to construct

13 a border barrier in the six sectors that Defendants identified in New Mexico, Arizona, and

14 California, using funds reprogrammed by DoD under Section 8005. Sierra Club, No. 19-cv-

15 00892-HSG, Dkt. No. 185 at 10.

16

Following the Court’s summary judgment orders, Defendants filed an emergency

17 application with the Ninth Circuit for a stay of the injunction. On July 3, 2019, the Ninth Circuit

18 motions panel denied the stay application, finding that Defendants’ border barrier construction

19 was not authorized by any statutory appropriation, such that the proposed reprogramming and use

20 of these funds violated the Appropriations Clause. See Sierra Club v. Trump, 929 F.3d 670, 676–

21 77 (9th Cir. 2019). The motions panel further held—over Defendants’ objection—that Plaintiffs

22 have an equitable cause of action to challenge Defendants’ funding proposal as unconstitutional,

23 and that Plaintiffs satisfied any “zone of interests” test that may apply to their claim. See id. at

24 694–704; see also Section III.A below.

25

On July 26, 2019, the Supreme Court stayed the permanent injunction pending resolution

26 of the government’s appeal before the Ninth Circuit and any subsequent writ of certiorari. See

27 Trump v. Sierra Club, 140 S. Ct. 1 (2019). In the one-paragraph decision, the Supreme Court

28 stated that “the Government has made a sufficient showing at this stage that the plaintiffs have no 9

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 10 of 47

United States District Court Northern District of California

1 cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id.

2 The Supreme Court, however, provided no further explication of its reasoning, and the appeal

3 before the Ninth Circuit regarding Section 8005 remains pending.

4

In the interim, the parties agreed to stay the summary judgment briefing schedule as to

5 Section 2808 and the Treasury Forfeiture Fund until the Acting Secretary of Defense and U.S.

6 Customs and Border Protection (“CBP”), respectively, reached a final decision to fund specific

7 barrier construction projects under these provisions. See California, No. 19-cv-00872-HSG, Dkt.

8 Nos. 199, 200; Sierra Club, No. 19-cv-00892-HSG, Dkt. Nos. 191, 197. Because the Secretary of

9 Defense has since announced his authorization for border barrier construction projects pursuant to

10 Section 2808, as detailed in Section I.A.ii above, the parties now move for partial summary

11 judgment as to this proposal.

12 II. LEGAL STANDARD

13

Summary judgment is proper when a “movant shows that there is no genuine dispute as to

14 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

15 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson

16 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence

17 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.

18 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from

19 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.

20 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence

21 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997),

22 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court

23 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to

24 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a).

25 III. DISCUSSION

26

A. Plaintiffs’ Cause of Action

27

As a threshold matter, Defendants contend that Plaintiffs lack a cause of action through

28 which they may challenge the proposed use of military construction funds under Section 2808. 10

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 11 of 47

United States District Court Northern District of California

1 They argue that Plaintiffs may not seek equitable relief through an implied cause of action under

2 the Constitution, and that Plaintiffs fall outside the zone of interests protected by Section 2808 and

3 the CAA. As Defendants acknowledge, they raised the same arguments before this Court and the

4 Ninth Circuit motions panel in the context of Plaintiffs’ challenge to funding a border wall using

5 Section 8005. In response, the Ninth Circuit engaged in a detailed discussion—and rejection—of

6 each point, concluding that “Plaintiffs have an avenue for seeking relief.” See Sierra Club, 929

7 F.3d at 694–704; see also Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 245 (Brief of Amici

8 Curiae Federal Courts Scholars).

9

First, the Ninth Circuit held that Plaintiffs could challenge the reprogramming of funds

10 under Section 8005 “through an equitable action to enjoin unconstitutional official conduct.”

11 Sierra Club, 929 F.3d at 694. Plaintiffs’ argument there, as here, is that Defendants’ attempt to

12 reprogram funds for border barrier construction violates the Appropriations Clause, and thus

13 separation of powers principles, because “Defendants lack any background constitutional authority

14 to appropriate funds.” See id. at 696. The Ninth Circuit confirmed that such a claim is

15 “fundamentally a constitutional one,” and “Plaintiffs may seek equitable relief to remedy an

16 alleged constitutional violation.” Id. at 695–97. That Defendants rely on Section 8005 (or here,

17 Section 2808) as the basis for their efforts to reallocate funds for border barrier construction does

18 not convert a constitutional claim into a statutory one. See id. at 697 (“It cannot be that simply by

19 pointing to any statute, governmental defendants can foreclose a constitutional claim.”).

20

Second, the Ninth Circuit expressed “doubt[] that any zone of interests test applies to

21 Plaintiffs’ equitable cause of action to enjoin a violation of the Appropriations Clause.” Id. at 700.

22 A zone of interests test is used “to ‘determine, using traditional tools of statutory interpretation,

23 whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.’” Id.

24 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014)). The

25 test “ask[s] whether the plaintiff’s ‘interests fall within the zone of interests protected by the law

26 invoked.’” Id. (quoting Lexmark, 572 U.S. at 129). The Ninth Circuit highlighted the problems

27 with applying a zone of interests test to Plaintiffs’ constitutional claim: “[W]here the very claim is

28 that no statutory or constitutional provision authorized a particular governmental action, it makes 11

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 12 of 47

United States District Court Northern District of California

1 little sense to ask whether any statutory or constitutional provision was written for the benefit of

2 any particular plaintiffs.” Id. at 701 (emphasis omitted). Moreover, “[b]ecause the Constitution

3 was not created by any act of Congress, it is hard to see how the zone of interests test would even

4 apply.” Id. at 702. Thus, the Court concluded that “it is likely sufficient here that Plaintiffs would

5 be concretely injured by the alleged Appropriations Clause violation, and that no zone of interests

6 test applies to their claim.” Id. at 701.

7

Third, even if a zone of interests test did apply to such a constitutional claim, the Ninth

8 Circuit explained that the proper inquiry is whether Plaintiffs fall within the zone of interests of

9 the constitutional provision, and not the statute Defendants raise in defense. Id. at 703–04. The

10 Court explained that “individuals, too, are protected by the operations of separation of powers and

11 checks and balances,” and thus, Plaintiffs’ contention “that their rights or liberties were infringed

12 by a violation of the Appropriations Clause . . . falls within any zone of interests required to

13 enforce that clause’s provisions.” Id. at 704 (quotation omitted).

14

i. Miller v. Gammie

15

Defendants urge the Court to disregard the Ninth Circuit’s reasoning in light of the

16 Supreme Court’s opinion staying the permanent injunction as to Section 8005. See Trump, 140 S.

17 Ct. at 1. Defendants argue that the “Supreme Court decision sends a strong signal” that they

18 ultimately will prevail on the claim that their exercise of authority under Section 8005 may not be

19 challenged by these Plaintiffs. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 236 at 11. This

20 claimed “strong signal” is based on a sentence in the Supreme Court’s stay order stating that “the

21 Government has made a sufficient showing at this stage that the plaintiffs have no cause of action

22 to obtain review of the Acting Secretary’s compliance with Section 8005.” See Trump, 140 S. Ct.

23 at 1. 6 However, notwithstanding Defendants’ characterization of this “signal,” the Court may not

24

25

6 The October 15, 2019, veto message went further, claiming that the proclamation itself “has withstood judicial challenge in the Supreme Court.” See S.J. Res. 54 Veto Message. This is

26

inaccurate: the injunction that was the subject of the stay involved a funding source that did not depend on the emergency declaration, and the validity of the proclamation has never been

27

addressed by the Ninth Circuit or the Supreme Court. See Sierra Club, 929 F.3d at 686 (explaining that the Ninth Circuit’s opinion “does not address any sources of funds Defendants

28

might use to build a border barrier except those reprogrammed under section 8005”), 679, & n.1 (explaining that DoD’s proposed use of funds reprogrammed under Section 8005 to provide

12

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 13 of 47

United States District Court Northern District of California

1 so readily disregard the Ninth Circuit’s opinion. The Ninth Circuit has cautioned that only in

2 cases of “clear irreconcilability” can district courts “consider themselves bound by the intervening

3 higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively

4 overruled.” Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). “This is a high

5 standard,” which “requires [the district court] to look at more than the surface conclusions of the

6 competing authority.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.

7 2013) (quotation omitted).

8

At this stage, the Court can only speculate regarding the reasoning underlying the stay,

9 including what it means for how the Supreme Court may ultimately assess the merits of these two 10 cases.7 As Justice Breyer explained, “[t]his case raises novel and important questions about the

11 ability of private parties to enforce Congress’ appropriations power.” Trump, 140 S. Ct. 1

12 (Breyer, J., concurring in part and dissenting in part). Because the Supreme Court opinion does

13 not address these questions directly, the Court cannot find that it is “clearly irreconcilable with the

14 reasoning or theory” in the Ninth Circuit panel opinion. See Miller, 335 F.3d at 899; accord Close

15 v. Sotheby’s, Inc., 894 F.3d 1061, 1074 (9th Cir. 2018) (holding that even where a prior panel

16 opinion’s “reasoning would be suspect today, [] it is not clearly irreconcilable with intervening

17 higher authority”); Doe v. Trump, 284 F. Supp. 3d 1182, 1184–85 (W.D. Wash. 2018) (“[T]his

18 court is not at liberty to simply ignore binding Ninth Circuit precedent based on Defendants’

19 divination of what the Supreme Court was thinking when it issued the stay orders . . . .”). The

20 Ninth Circuit’s opinion in Sierra Club v. Trump therefore controls this Court’s analysis.

21

ii. Zone of Interests

22

Following the Ninth Circuit’s reasoning, as it must, the Court finds that Plaintiffs may

23 challenge Defendants’ funding for border barrier construction under Section 2808. As with their

24

25 support for other agencies under section 284 “does not require the declaration of a national

26

emergency”). 7 During oral argument on the motions, counsel for Defendants also acknowledged that he did not

27

know the precise grounds on which the Supreme Court stayed the permanent injunction. Counsel opined that the majority could have “meant there is not a cause of action period, or there’s not a

28

cause of action for these plaintiffs because of the zone of interests test” applicable to their claim. See California, No. 19-cv-00872-HSG, Dkt. No. 254 at 53:17–20.

13

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 14 of 47

United States District Court Northern District of California

1 challenge to Defendants’ use of funds under Section 8005, Plaintiffs’ claim that Defendants’ use

2 of military construction authority under Section 2808 violates the Appropriations Clause is

3 “fundamentally a constitutional” claim. See Sierra Club, 929 F.3d at 696–97. And to the extent

4 Plaintiffs must fall within the zone of interests of the Appropriations Clause to assert this claim,

5 see id. at 703–04, the Court finds this “low bar” easily satisfied here. See Cook v. Billington, 737

6 F.3d 767, 771 (D.C. Cir. 2013) (Kavanaugh, J.) (“A plaintiff with Article III standing satisfies the

7 requirement unless his interests are so marginally related to or inconsistent with the purposes

8 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

9 suit.” (quotation omitted)).

10

The Court first looks to the fundamental interests protected by the Appropriations Clause,

11 and observes that the importance of those interests cannot be overstated. The Appropriations

12 Clause “is particularly important as a restraint on Executive Branch officers: If not for the

13 Appropriations Clause, the Executive would possess an unbounded power over the public purse of

14 the nation; and might apply all its monied resources at his pleasure.” U.S. Dep’t of Navy v. Fed.

15 Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.) (quotation omitted).

16 As such, members of the public, and not just Congress, have an interest in ensuring that the

17 Constitution’s checks on executive power are upheld. As the Ninth Circuit noted, “[t]he

18 Appropriations Clause is a vital instrument of separation of powers, which has as its aim the

19 protection of individual rights and liberties—not merely separation for separation’s sake.” Sierra

20 Club, 929 F.3d at 704. Both State and Sierra Club Plaintiffs assert that if Defendants proceed with

21 their proposed spending plan in contravention of Congress’ appropriations judgment, they will

22 suffer injury to their “environmental, professional, aesthetic, and recreational interests.” Id. In

23 short, the Court finds that Plaintiffs have a cause of action to challenge Defendants’ invocation of

24 Section 2808 as unconstitutional, and proceeds to analyze this claim below.

25

B. Section 2808

26

The Ninth Circuit’s opinion in Sierra Club v. Trump further guides the Court’s analysis of

27 Plaintiffs’ constitutional claim. See Sierra Club, 929 F.3d at 689–92. Plaintiffs’ claim—and the

28 legal theory undergirding both cases—is that Defendants seek to circumvent Congress’ 14

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 15 of 47

United States District Court Northern District of California

1 appropriations power, and its judgment to provide the Administration with limited funds for

2 specified and limited border barrier construction, by seeking funding through alternative channels.

3 Defendants’ counsel characterized the Administration’s approach as “a full-court press,” meaning

4 they are using any means that they contend are available to them to fund a border wall. See

5 California, No. 19-cv-00872-HSG, Dkt. No. 254 at 73:5–19. Although Plaintiffs appear to

6 challenge all funding for border barrier construction outside of the CAA, for purposes of this

7 order, Defendants contend that in Section 2808, Congress allowed Defendants to make this

8 reallocation from existing military construction projects to the border barrier construction.

9 Because Congress only exercises its appropriations power through statutes, the Ninth Circuit

10 accordingly focused its analysis on the text and purpose of Defendants’ asserted defense. Sierra

11 Club, 929 F.3d at 689–92. The critical inquiry, therefore, is whether Section 2808 authorizes this

12 reallocation. If it does not, “then Defendants are acting outside of any statutory appropriation and

13 are therefore spending funds contrary to Congress’s appropriations decisions.” Id. at 689. The

14 Court therefore analyzes whether Defendants’ conduct falls within the statutory authority provided

15 by Section 2808.

16

Under Section 2808, the Secretary of Defense may use funds previously appropriated for

17 other projects in limited circumstances where three factors are satisfied: (1) there is a national

18 emergency that requires use of the armed forces, and (2) “military construction projects” are

19 (3) “necessary to support such use of the armed forces.” See 10 U.S.C. § 2808(a). Plaintiffs

20 challenge all three conditions, arguing that Defendants fail to satisfy any of them.

21

i. Justiciability

22

As a threshold matter, Defendants assert that the Court may not assess whether they have

23 satisfied the statute’s requirements, because their decision to undertake military construction

24 pursuant to Section 2808 was entirely committed to agency discretion. See Sierra Club, No. 19-

25 cv-00892-HSG, Dkt. No. 236 at 15–16, 19–20. Defendants reason that there is no meaningful

26 standard against which the Court can determine whether the President or Secretary of Defense

27 exceeded the authority granted by Congress by declaring a national emergency that required use of

28 the armed forces; authorizing use of Section 2808; or undertaking military construction projects 15

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 16 of 47

United States District Court Northern District of California

1 under Section 2808. Id. In short, Defendants contend that the President and Secretary of Defense

2 have unreviewable discretion, under both the NEA and Section 2808, to determine whether an

3 emergency exists that meets the statutory criteria. Plaintiffs indicated during oral argument that

4 they are not challenging the President’s emergency declaration per se, but rather whether it meets

5 the statutory criteria for an emergency under Section 2808. See California, No. 19-cv-00872-

6 HSG, Dkt. No. 254 at 12:6–16:12. The Court addresses that narrow challenge as part of its

7 statutory analysis in Section III.B.ii. Here, however, the Court cabins its analysis to Defendants’

8 argument that their invocation of Section 2808 itself is committed to agency discretion by law, and

9 as such, is nonjusticiable. See 5 U.S.C. § 701(a)(2). The Court disagrees that its ability to review

10 Defendants’ conduct is so circumscribed.

11

As the Ninth Circuit has repeatedly held, “[t]he default rule is that agency actions are

12 reviewable under federal question jurisdiction, pursuant to 28 U.S.C. § 1331 . . . even if no statute

13 specifically authorizes judicial review.” See Perez v. Wolf, No. 18-35123, 2019 WL 6224421, at

14 *5 (9th Cir. Nov. 11, 2019) (quoting ANA Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004)). A

15 decision is generally committed to agency discretion by law, and thus not subject to judicial

16 review, when a court would have “no meaningful standard against which to judge the agency’s

17 exercise of discretion.” Id. at *5 (quotation omitted). This is rare. “Only where there is truly ‘no

18 law to apply’ ha[s] [the Ninth Circuit] found an absence of meaningful standards of review.” Id.

19 at *6 (quoting Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003)).

20 Courts must assess “the language of the statute and whether the general purposes of the statute

21 would be endangered by judicial review.’” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th

22 Cir. 2015) (quotation omitted).

23

Engaging in this exercise, the Ninth Circuit recently explained that “courts routinely treat

24 discretion-laden standards as providing ‘law to apply.’” Perez, 2019 WL 6224421, at *8–*9

25 (collecting cases). In Perez v. Wolf, the Ninth Circuit held that U-Visa determinations made by

26 the United States Citizenship and Immigration Service (“USCIS”) are subject to judicial review

27 because the statutory framework provides a meaningful standard against which to assess the

28 agency’s exercise of discretion. Id. at 15–16. The statutory provision requires that a U-Visa 16

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 17 of 47

United States District Court Northern District of California

1 applicant:

2

(1) has suffered “substantial physical or mental abuse” as a result of

having been a victim of qualifying criminal activity; (2) “possesses

3

information” about qualifying criminal activity; and (3) “has been

helpful, is being helpful, or is likely to be helpful” to an authority

4

“investigating or prosecuting” qualifying criminal activity.

5

6 Id. at *8 (citing 8 U.S.C. § 1101(a)(15)(U)(i)). Although terms such as “substantial” and “helpful”

7 contain an element of subjectivity, the Ninth Circuit nevertheless found that they constituted “law

8 to apply.” Id.

9

The Court finds that Section 2808 likewise provides “meaningful standards” for reviewing

10 Defendants’ compliance with its conditions. The diversion of funds from existing military

11 construction projects is only authorized for (1) “military construction projects” that are

12 (2) “necessary to support such use of the armed forces.” See 10 U.S.C. § 2808(a). Congress

13 defined military construction as “any construction, development, conversion, or extension of any

14 kind carried out with respect to a military installation, whether to satisfy temporary or permanent

15 requirements, or any acquisition of land or construction of a defense access road.” Id. § 2801(a).

16 And Congress defined “military installation,” in turn, as “a base, camp, post, station, yard, center,

17 or other activity under the jurisdiction of the Secretary of a military department or, in the case of

18 an activity in a foreign country, under the operational control of the Secretary of a military

19 department or the Secretary of Defense, without regard to the duration of operational control.” Id.

20 § 2801(c)(4). Section 2808 therefore establishes statutory standards that constrain its use. And

21 applying these standards to determine “whether the reprogramming of funds is consistent with the

22 Appropriations Clause and [Section 2808] . . . is a familiar judicial exercise.” See Sierra Club,

23 929 F.3d at 687 (quotation omitted).

24

That the statute conditions authorization on the existence of a national emergency and the

25 use of the armed forces does not, on its own, convert the legal exercise of statutory interpretation

26 into a purely political one. The Ninth Circuit’s opinion in United States v. Spawr Optical

27 Research, Inc., is illustrative. In Spawr, President Gerald Ford relied on the continued existence

28 of two national emergencies to forbid the shipment of certain strategic items to foreign countries 17

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 18 of 47

United States District Court Northern District of California

1 under the Trading with the Enemy Act (“TWEA”). 685 F.2d 1076, 1079–80 (9th Cir. 1982).

2 During a national emergency, TWEA empowered the president to “regulate, . . . prevent or

3 prohibit . . . any exportation of . . . or transactions involving[] any property in which any foreign

4 country . . . has any interest.” 50 U.S.C. § 4305(b)(1)(B). The Ninth Circuit distinguished

5 between “the essentially political questions surrounding the declaration or continuance of a

6 national emergency,” on the one hand, and the legal question of “whether the actions taken

7 pursuant to a national emergency comport with the power delegated by Congress,” on the other.

8 See Spawr, 685 F.2d at 1080–81. The Ninth Circuit held that courts “are free to review” whether

9 the Executive Branch has legal authority to act, and went on to determine whether the regulations

10 at issue were rationally related to the emergencies. See id. at 1081 (concluding that “President

11 Ford’s effort to limit the exportation of strategic items clearly had a rational relationship to the

12 prevention of aggression and armed conflict”).

13

The Court fully appreciates that “[n]ational-security policy is the prerogative of the

14 Congress and President,” and that their military judgments are due deference. See Ziglar v.

15 Abbasi, 137 S. Ct. 1843, 1861 (2017); see also Rostker v. Goldberg, 453 U.S. 57, 66 (1981)

16 (acknowledging “a healthy deference to legislative and executive judgments in the area of military

17 affairs”). But “the judiciary appropriately exercises its constitutional function where the question

18 is whether Congress or the Executive is aggrandizing its power at the expense of another branch.”

19 Sierra Club, 929 F.3d at 687 (quotation omitted). As the Ninth Circuit explained, “‘courts cannot

20 avoid their responsibility merely because the issues have political implications.’” Id. (quoting

21 Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012)). The Court accordingly may, and must,

22 determine whether Defendants have exceeded the limits set by Congress regarding spending under

23 Section 2808, while affording both branches due deference. As summarized by the Ninth Circuit

24 in another case in which the Executive Branch invoked national security concerns in support of its

25 nonjusticiability argument:

26

To declare that courts cannot even look to a statute passed by

27

Congress to fulfill international obligations turns on its head the role

of the courts and our core respect for a co-equal political branch,

28

Congress. Interpreting and applying [the statute at issue] does not

18

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 19 of 47

United States District Court Northern District of California

prevent the military from planning and building bases. It requires

1

only that the executive take into account certain procedural

obligations, required by Congress, before it takes steps forward. The

2

courts may then look to whether the executive complied with its

obligations. We may consider national security concerns with due

3

respect when the statute is used as a basis to request injunctive relief.

This is not a grim future, and certainly no grimmer than one in which

4

the executive branch can ask the court for leave to ignore acts of

Congress. 5

6 Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir. 2017).

7

ii. Statutory Interpretation

8

Having found that Section 2808 provides meaningful standards against which the Court

9 may analyze Defendants’ conduct under the statute, the Court reviews their compliance with those

10 standards. The Court provided its initial impression as to Defendants’ compliance with Section

11 2808 in its preliminary injunction order in Sierra Club v. Trump. See Sierra Club, 19-cv-00892-

12 HSG, Dkt. No. 144 at 42–46. At the time, the Court expressed reservations that “border barrier

13 construction could reasonably constitute a ‘military construction project’ such that Defendants’

14 invocation of Section 2808 would be lawful,” and also raised concerns that Defendants’

15 interpretation of Section 2808 would cede unbounded authority to Defendants to redirect military

16 construction funds. See id. at 42–43. Now that Defendants have specified how they intend to use

17 Section 2808, the Court confirms its preliminary analysis, finding that the eleven border barrier

18 projects are not “military construction projects” that are “necessary to support such use of the

19 armed forces.” See 10 U.S.C. § 2808(a).

20

a. Emergency Requiring Use of the Armed Forces

21

Sierra Club Plaintiffs alone challenge the President’s February 15 declaration of a national

22 emergency to the extent that the President simultaneously concluded that this emergency required 23 use of the armed forces.8 See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210 at 9–11. Sierra

24 Club Plaintiffs couch this as a statutory condition, and thus as a matter of statutory interpretation

25 under Section 2808 rather than one of policy or politics. The Court is not persuaded.

26

27 8 State Plaintiffs, on the other hand, explicitly note that for purposes of their motion for partial

28

summary judgment they are not challenging the President’s declaration of a national emergency. See California, No. 19-cv-00872-HSG, Dkt. No. 220 at 8.

19

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 20 of 47

United States District Court Northern District of California

1

Sierra Club Plaintiffs assert that there is no true emergency at the southern border, and that

2 even if there were, DHS, not DoD, has jurisdiction over protecting the nation’s borders. In

3 support of their challenge, Sierra Club Plaintiffs point to the text of the proclamation itself, which

4 states in relevant part:

5

[R]ecent years have seen sharp increases in the number of family units

entering and seeking entry to the United States and an inability to

6

provide detention space for many of these aliens while their removal

proceedings are pending . . . [T]he Department of Defense has

7

provided support and resources to the Department of Homeland

Security at the southern border. Because of the gravity of the current

8

emergency situation, it is necessary for the Armed Forces to provide

additional support to address the crisis. 9

10 Proclamation No. 9844. Plaintiffs contend that “unarmed parents and children seeking refuge do

11 not require a military response.” See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210 at 11.

12 Plaintiffs also point to comments made by DoD officials outside the proclamation that the

13 situation at the border is “not a military threat.” See, e.g., id., Dkt. No. 210-2, Ex. 15 at 50–52

14 (Acting U.S. Secretary of Defense Shanahan and General Joseph Dunford concurring that the

15 “situation on the southern border” is a “security challenge” and “not a military threat”); Ex. 16 at 2

16 (Admiral Michael M. Gilday, Operations Director of the Joint Staff, stating that “[n]one of the

17 capabilities that we are providing are combat capabilities” and “[i]t’s not a war zone along the

18 border”). Rather, in Plaintiffs’ view, Defendants are using DoD’s temporary and limited support

19 of DHS—the civilian agency that Congress has tasked with border security and immigration

20 enforcement—to justify funding the border barriers that DHS has sought to build. See, e.g., 6

21 U.S.C. §§ 202, 251; 8 U.S.C. §§ 1103(a)(5), (a)(10).

22

At bottom, Plaintiffs’ theory is premised on the idea that the proclamation was designed

23 solely to avoid Congress’ appropriations judgment and that the emergency is a convenient pretext.

24 The Court acknowledges that both the timing and nature of the emergency raise obvious questions.

25 The Administration repeatedly and unsuccessfully sought appropriations from Congress for border

26 barrier construction. When Congress and the President could not agree on such funding, the

27 President suggested his willingness to declare a national emergency if Congress refused to

28 appropriate the money he requested. See, e.g., California, 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 20

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 21 of 47

United States District Court Northern District of California

1 21. When asked about his threshold for declaring an emergency, the President stated, “[m]y

2 threshold will be if I can’t make a deal with people that are unreasonable.” See George Sargent,

3 Trump: I have the ‘absolute right’ to declare a national emergency if democrats defy me, Wash.

4 Post (Jan. 9, 2019), https://tinyurl.com/y5f5eqwg. And the President then declared the national

5 emergency one day after Congress passed the CAA, which limited appropriations for border

6 barrier construction. See Proclamation No. 9844. In announcing the national emergency

7 declaration, the President explained, “I could do the wall over a longer period of time. I didn’t

8 need to do this. But I’d rather do it much faster. . . . And I think that I just want to get it done

9 faster, that’s all.” See California, No. 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 50.

10

All this said, there is no precedent for a court overriding a President’s discretionary

11 judgment as to what is and is not an emergency. That one of the conditions to invoke Section

12 2808 is that the emergency require use of the armed forces does not alter the nature of the inquiry.

13 Sierra Club Plaintiffs are still asking the Court to evaluate the “policy choice[] and value

14 determination[]” underlying the President’s emergency proclamation. Japan Whaling Ass’n v.

15 Am. Cetacean Soc., 478 U.S. 221, 230 (1986). Plaintiffs have not cited, and the Court has not

16 found, any case in which a court has assessed the nature and validity of an emergency

17 proclamation. Cf. California, No. 19-cv-00872-HSG, Dkt. No. 254 at 12:6–16:12. To the

18 contrary, as discussed in Section III.B.i above, the Ninth Circuit has characterized “the declaration

19 or continuance of a national emergency” as an “essentially political question[].” Spawr, 685 F.2d

20 at 1080–81. The Court accordingly finds that whether the national emergency truly exists, and

21 requires use of the armed forces, are nonjusticiable political questions.

22

The Court nevertheless acknowledges the significant constitutional tension inherent in the

23 President’s invocation of a national emergency under the NEA for the avowed purpose of

24 accessing money to fund projects that Congress expressly considered and declined to fund. It is

25 apparent that at the time Congress enacted the NEA it did not envision the statute would (or even

26 could) be used to circumvent the will of Congress. As the Court previously explained, Congress

27 initially reserved the right to terminate a national emergency with a simple majority and without

28 the opportunity for a presidential veto. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 144 at 21

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 22 of 47

United States District Court Northern District of California

1 13–14, & n.8; see also id., Dkt. No. 219 at 10–15 (Brief of Amici Curiae Brennan Center for

2 Justice and the Cato Institute) (“Brennan Center Brief”). Thus, prior to the Supreme Court’s

3 opinion in INS v. Chadha, it would have been impossible for the President to use the NEA to

4 somehow bypass the will of a congressional majority. See 462 U.S. at 944–58; see also Sierra

5 Club, No. 19-cv-00892-HSG, Dkt. No. 219 (Brennan Center Brief) at 15 (“The notion that

6 Congress intended the NEA as an affirmative delegation of unlimited discretion to the president—

7 one that would allow the president to circumvent the will of Congress on specific policy

8 proposals—is contradicted by this and every other aspect of the legislative history.”).

9

Still, Congress is not without recourse. Under the NEA, “[a]ny national emergency

10 declared by the President in accordance with this subchapter shall terminate if . . . there is enacted

11 into law a joint resolution terminating the emergency.” 50 U.S.C. § 1622(a)(1). Moreover, the

12 NEA not only allows, but in fact obligates, Congress to “consider a vote on a joint resolution to

13 determine whether that emergency shall be terminated” every six months. See id. § 1622(b).

14 Congress thus has the authority to monitor and if needed, reverse, the President’s determination

15 that circumstances at the southern border constitute a national emergency. That Congress has so

16 far been unable to override the President’s veto with a two-thirds majority vote does not somehow

17 transform this fundamentally political question into a legal one. Because the national emergency

18 remains in effect, the Court may not opine as to whether the President properly invoked the NEA

19 by declaring a national emergency requiring the use of the armed forces at the southern border.

20

b. Military Construction Project

21

Next, the parties disagree as to whether the border barrier construction projects constitute

22 “military construction projects” for purposes of Section 2808.9 As noted above, Congress defined

23 the term “military construction” to “include[] any construction, development, conversion, or

24 extension of any kind carried out with respect to a military installation, whether to satisfy

25

26

9 During the hearing, Sierra Club Plaintiffs explained that they are not challenging whether the two projects on the Barry M. Goldwater Range, an existing military installation, constitute military

27

construction for purposes of Section 2808. See California, No. 19-cv-00872-HSG, Dkt. No. 254 at 85:12–19. Defendants have identified these two projects as Yuma Project 2 and Yuma Project

28

10/27. But Plaintiffs still challenge whether any of the eleven projects are necessary to support use of the armed forces. See Section III.B.ii.c.

22

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 23 of 47

United States District Court Northern District of California

1 temporary or permanent requirements, or any acquisition of land or construction of a defense

2 access road . . . .” 10 U.S.C. § 2801(a). Because it is apparent that border barrier construction

3 constitutes “construction,” the critical question before the Court is whether the eleven proposed

4 projects are being “carried out with respect to a military installation.” Id.; see also id. § 2801(b)

5 (“A military construction project includes all military construction work . . . necessary to produce

6 a complete and useable facility or a complete and usable improvement to an existing facility.”).

7

A “military installation,” in turn, “means a base, camp, post, station, yard, center, or other

8 activity under the jurisdiction of the Secretary of a military department . . . .” Id. § 2801(c)(4).

9 Defendants do not attempt to characterize the projects as either a “base, camp, post, station, yard,

10 [or] center.” See id. § 2801(c)(4). Instead, they reason that the 175 miles of proposed border

11 barrier construction fall within the “other activity” definition because DoD has obtained—or will

12 obtain—administrative jurisdiction over the land for these projects and assign it to Fort Bliss in

13 Texas. See California, No. 19-cv-00872-HSG, Dkt. No. 236-7, Ex. 7 (General Order No. 2019-

14 36). By obtaining administrative jurisdiction over the land in this way, they conclude, all eleven

15 projects will be part of an existing military installation. Id. In other words, Defendants contend

16 that “military installation” is “inclusive of [any] activities under the jurisdiction of the Secretary of

17 a military department.” See id., Dkt. No. 236 at 13. The Court finds several flaws with this

18 expansive interpretation.

19

First, Defendants’ interpretation requires the Court to disregard the plain language of the

20 statute. Defendants would have the Court transform the definition of “military installation” to

21 include not just “other activity,” but “any activity” under military jurisdiction. That simply is not 22 what the statute says.10 As the Supreme Court has noted, when interpreting a statute, context

23 matters. See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016) (“[W]e look to the

24

25 10 In its opposition to Sierra Club Plaintiffs’ motion for a preliminary injunction as to Section

26

2808, see Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 64 at 21–23, Defendants initially posited that the as-yet unidentified border barrier projects would fall within the “other activity” category.

27

Applying traditional tools of statutory construction, the Court explained that “a base, camp, post, station, yard, [and] center” are all discrete and traditional military locations, and “other activity”

28

must refer to similar locations. The Court incorporates that reasoning again here, in all respects. See id., Dkt. No. 144 at 44–45.

23

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 24 of 47

United States District Court Northern District of California

1 context in which the words appear.”); see also ASARCO, LLC v. Celanese Chem. Co., 792 F.3d

2 1203, 1210 (9th Cir. 2015) (“[T]he plain language of a statute should be enforced according to its

3 terms, in light of its context.”). And here, as the Court cautioned before, the terms “base, camp,

4 post, station, yard, [or] center” are not mere surplusage to ignore, but rather supply meaning and

5 provide boundaries to the term “other activity.” See, e.g., McDonnell, 136 S. Ct. at 2369

6 (explaining that canons of construction are “wisely applied . . . to avoid the giving of unintended

7 breadth to the Acts of Congress” (quotation omitted)); Yates v. United States, 135 S. Ct. 1074,

8 1087 (2015) (“Had Congress intended ‘tangible object’ in § 1519 to be interpreted so generically

9 as to capture physical objects as dissimilar as documents and fish, Congress would have had no

10 reason to refer specifically to ‘record’ or ‘document.’ The Government’s unbounded reading of

11 ‘tangible object’ would render those words misleading surplusage.”); CSX Transp., Inc. v. Ala.

12 Dept. of Revenue, 562 U.S. 277, 295 (“We typically use ejusdem generis to ensure that a general

13 word will not render specific words meaningless.”). Defendants do not even attempt to explain

14 how the proposed projects are similar in nature or scope to “a base, camp, post, station, yard, [or]

15 center,” 10 U.S.C. § 2801(c)(4), and the Court finds that they are not.

16

Rather than engaging with the text of the statute, Defendants rely heavily on the Supreme

17 Court’s decision in United States v. Apel, 571 U.S. 359, 368 (2014). There, the Supreme Court

18 noted that “‘military duty’ and ‘military protection’ are synonymous with the exercise of military

19 jurisdiction,” and that the term “‘military installation’ is used [that way] elsewhere in federal law.”

20 Id. (emphasis omitted). The Supreme Court, however, was not analyzing the definition of military

21 installations under Section 2808 or 10 U.S.C. § 2801(c)(4). The case involved an entirely

22 different statute under Title 18, which imposed a criminal fine on anyone who reentered a

23 “military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation” after

24 being removed. See 18 U.S.C. § 1342. The question before the Court in Apel was whether a

25 public easement on an Air Force base was still considered part of the military installation. The

26 Court rejected “[t]he use-it-or-lose-it rule” that § 1342 only applied where the military had

27 exclusive use, possession, or control over the property in question. Apel, 571 U.S. at 372. In

28 doing so, the Court cited the language of 10 U.S.C. § 2801(c)(4), but did not engage in any 24

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 25 of 47

United States District Court Northern District of California

1 analysis of its possible limitations. See id. at 368. Indeed, to the extent Apel provides any insight

2 for the interpretation of Section 2808, it is simply that statutes must be read in context, and with an

3 eye toward common sense. Id. at 369–72.

4

Defendants also suggest that Congress intended “military installation” in Section 2808 to

5 be read broadly because elsewhere it defined the term differently. Under 10 U.S.C. § 2687(g)(1),

6 for example, Congress defined “military installation” in the context of base closures to “mean[] a

7 base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the

8 jurisdiction of the Department of Defense,” but excluded “any facility used primarily for civil

9 works, rivers and harbors projects, or flood control projects.” Id. The Court acknowledges that

10 Congress may provide different definitions in different statutes, but this does not open the door to

11 a limitless definition of military installation in Section 2808. Again, part of the inquiry is context

12 and congressional intent, but Defendants do not engage with either.

13

Second, Defendants’ interpretation would grant them essentially boundless authority to

14 reallocate military construction funds to build anything they want, anywhere they want, provided

15 they first obtain jurisdiction over the land where the construction will occur. Although Defendants

16 attempt to reassure the Court that they “are not arguing that the entire southern U.S. border”

17 constitutes a military installation for purposes of Section 2808, see California, No. 19-cv-00872-

18 HSG, Dkt. No. 236 at 13, there is nothing in their interpretation to preclude them from doing so.

19 When asked during the hearing whether Defendants’ reading of Section 2808 had a limiting

20 principle, counsel could not articulate one. See id., Dkt. No. 254 at 62:21–64:3.

21

The scale of what is possible under this reading is immense. The eleven projects at issue

22 in the instant motions are illustrative. Defendants acknowledge that nine of the proposed projects

23 are on federal public domain or non-public land, not previously under military jurisdiction. See

24 id., Dkt. Nos. 206 at 2–4, 206-1, Ex. 1. These nine projects, which cover 140 of the 175 total

25 miles of border barrier construction at issue, are located on land spanning several hundred miles in

26 Arizona, California, New Mexico, and Texas. But Fort Bliss, the military installation to which

27 Defendants will administratively assign the land, is located near El Paso, Texas. Defendants

28 suggest that projects located several hundred miles away from Fort Bliss are nevertheless “carried 25

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 26 of 47

United States District Court Northern District of California

1 out with respect to [that] military installation,” provided Defendants complete the right paperwork.

2 See 10 U.S.C. § 2801(a).11 Under this interpretation, construction can be considered “carried out

3 with respect to a military installation” even if it is otherwise wholly unrelated to the installation’s

4 functions, purpose, or even geography. Indeed, Defendants do not offer any substantive

5 connection between the proposed construction here and Fort Bliss. Instead they acknowledge that

6 the construction sites are assigned administratively to Fort Bliss “for real property accountability

7 purposes.” See California, No. 19-cv-00872-HSG, Dkt. No. 251 at 4; see id., Dkt. No. 251-1 at

8 ¶¶ 7–11. They further state that “Fort Bliss is the largest, most capable Active Army installation

9 in the vicinity of the southern border.” Id. The Court is not persuaded that Congress intended

10 “military construction” to have no stronger connection to a military installation than Defendants’

11 own administrative convenience. If this were true, Defendants could redirect billions of dollars

12 from projects to which Congress appropriated funds to projects of Defendants’ own choosing, all

13 without congressional approval (and in fact directly contrary to Congress’ decision not to fund

14 these projects). Elevating form over substance in this way risks “the Executive [] aggrandizing its

15 power at the expense of [Congress].” Sierra Club, 929 F.3d at 687 (quotation omitted).

16

Third, Defendants’ interpretation contravenes clear congressional intent to limit—not

17 expand—executive emergency powers. The NEA was passed in 1976 as a reform measure,

18 following concern about the duration of the national emergencies that presidents had declared

19 historically, and the scope of their related emergency powers. See L. Elaine Halchin, National

20 Emergency Powers, Cong. Research Serv., 98-505 (Aug. 5, 2019). For example, an emergency

21 declaration that was issued at the start of the Korean War in 1950 was still being used decades

22

23 11 The Court notes that in an August 21, 2019, “Action Memo,” the Assistant Secretary of

24

Defense, Homeland Defense and Global Security said that in order for border barrier projects to constitute military construction projects, a military department would need to report the land in its

25

inventory “either as its own installation or as part of an existing, nearby military installation.” AR at 3 (emphasis added). Defendants now contend that this common-sense “nearby” condition is not

26

actually a formal requirement of the statute. See California, No. 19-cv-00872-HSG, Dkt. No. 251 at 3–4. Even if that is technically true, the Court finds it plain that Defendants’ characterization of

27

the breadth of the asserted power to cobble together far-flung parcels as part of one “military installation” goes far beyond any historical example they cite. See id., Dkt. No. 249 at 7–8 (citing

28

auxiliary landing field located 40 miles away from main military installation as an example of a “geographically separated location[] . . . part of, but physically separate from” that installation).

26

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 27 of 47

United States District Court Northern District of California

1 later with respect to the Vietnam War. Id. at 7. In 1973, there were four national emergencies still

2 in effect from 1933, 1950, 1970, and 1971. See id. The Senate, therefore, created a special

3 committee, known as the Special Committee on National Emergencies and Delegated Emergency

4 Powers, to evaluate this issue. See id. at 7–8. Through its work, the Committee identified 470

5 provisions of federal law that granted the president extensive emergency powers. See id. at 8.

6

The Committee developed legislation—the NEA—to limit the scope of such emergency

7 powers. In support of the NEA, the Committee explained the need to place limits on the

8 presidential use of emergency powers:

9

Right now, hundreds of emergency statutes confer enough authority

10

on the President to rule the country without reference to normal

constitutional process. Revelations of how power has been abused by

11

high government officials must give rise to concern about the

potential exercise, unchecked by the Congress or the American

12

people, of this extraordinary power. The National Emergencies Act

would end this threat and [e]nsure that the powers now in the hands

13

of the Executive will be utilized only in time of genuine emergency

and then only under safeguards providing for Congressional review. 14

15 See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 219 (Brennan Center Brief) at 12–13 (quoting

16 The National Emergencies Act (Public Law 94-412), Source Book: Legislative History, Text, and

17 Other Documents (1976) (“NEA Source Book”). In its report, the Committee noted that “[t]he

18 National Emergencies Act is not intended to enlarge or add to Executive power. Rather the statute

19 is an effort by the Congress to establish clear procedures and safeguards for the exercise by the

20 President of emergency powers conferred upon him by other statutes.” Id. at 14 (quoting NEA

21 Source Book).

22

In keeping with this narrower view of executive emergency powers, Section 2808 has

23 rarely been used, and never to fund projects for which Congress withheld appropriations. Rather,

24 Section 2808 has been used to build projects like aircraft hangars, barracks, airfield runways,

25 detention facilities, logistics hubs, and waste water treatment plants. See Vassalotti, at 2–3.

26 Defendants’ invocation of Section 2808 for border barrier construction, in conflict with Congress’

27

28 27

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 28 of 47

United States District Court Northern District of California

1 judgment on those projects, is simply unprecedented, contrary to the Administration’s claims. 12

2 This, on its own, is enough to warrant close scrutiny: “When an agency claims to discover in a

3 long-extant statute an unheralded power to regulate a significant portion of the American

4 economy, we typically greet its announcement with a measure of skepticism.” Util. Air

5 Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) (quotation omitted). Put simply, the Court

6 does not find that Section 2808 was intended to be used to resolve policy disputes with Congress

7 or to provide the Executive Branch with unchecked power to transform the responsibilities

8 assigned by law to a civilian agency into military ones by reclassifying large swaths of the

9 southern border as “military installations.” Such an interpretation defies both the text and spirit of

10 the statute. The Court, therefore, finds that the border barrier construction projects, with the

11 exception of the two projects on the Barry M. Goldwater range, are not “carried out with respect to

12 a military installation” within the meaning of Section 2808.

13

c. Necessary to Support Use of the Armed Forces

14

Even assuming the border barrier construction could somehow be considered military

15 construction for purposes of Section 2808, the parties also disagree as to whether the proposed

16 projects are necessary to support the use of the armed forces. Defendants rely on a lengthy

17 administrative record, which, they say, explains why the projects are necessary to provide such

18 support. But even crediting all facts in the administrative record, and giving due deference to the

19 strategic and military determinations in it, the Court finds that Defendants have not established

20 that the projects are necessary to support the use of the armed forces.

21

The problem is twofold. Inherent in Defendants’ argument and the administrative record is

22 that the proposed border barrier projects are intended to support and benefit DHS, a civilian

23 agency, rather than the armed forces. And although the administrative record explains why such

24

25 12 Compare S.J. Res. 54 Veto Message (“Proclamation 9844 was neither a new nor novel

26

application of executive authority. Rather it is the sixtieth Presidential invocation of the [NEA]. It relies upon the same statutory authority used by both of the previous two Presidents to

27

undertake more than 18 different military construction projects from 2001 through 2013.”), with Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 219 (Brennan Center Brief) at 20 (“Perhaps most

28

significantly, in none of these cases did presidents invoke emergency powers to take action after Congress had explicitly considered and rejected legislation to authorize such action.”).

28

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 29 of 47

United States District Court Northern District of California

1 border barrier projects may be beneficial to DHS’s mission, Defendants have not established that

2 they are in fact necessary to support the use of the armed forces—which is the statutory limitation

3 set by Congress. The Court discusses each issue in turn.

4

On April 4, 2018, the President directed the Secretary of Defense to support DHS “in

5 securing the southern border and taking other necessary actions” due to “[t]he crisis at our

6 southern border.” See California, 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 27. The President

7 further empowered the Secretary of Defense to “request use of National Guard personnel to assist”

8 as needed. Id. As of August 13, 2019, DoD had approximately 5,500 personnel supporting DHS

9 in its “border security mission.” See AR at 1, 45. DoD personnel are generally serving in

10 “support roles that relieve DHS personnel of non-law enforcement duties,” such as “logistics,

11 planning, and intelligence analysis” and “monitoring and detection support” through “operating

12 mobile surveillance cameras units or providing aerial reconnaissance.” Id. at 42. DHS stated that

13 the proposed border barrier projects that DHS recommended to DoD would “give a distinct and

14 enduring advantage to [U.S. Border Patrol] as a force multiplier,” and would “likely reduce DHS’s

15 reliance on DoD for force protection, surveillance support, engineering support, air support,

16 logistical support, and strategic communications assistance.” Id. at 43 (quotation omitted). In

17 sum, the Chairman of the Joint Chiefs of Staff and DHS summarized that the projects would

18 “allow DoD to provide support to DHS more efficiently and effectively.” See id. at 48; see also

19 id. at 59–71.

20

The administrative record therefore illustrates that the border barrier construction projects

21 are intended to benefit DHS and its subagencies, including CBP and U.S. Border Patrol (“USBP”).

22 The record explains that physical barriers, such as those proposed, may “[i]mprove CBP’s

23 detection, identification, classification, and response capabilities,” AR at 4; “[r]educe

24 vulnerabilities in key border areas and the time it takes for Border Patrol agents to apprehend

25 illegal migrants,” id.; “reduce the challenges to CBP,” id. at 61; “serve to channel illegal

26 immigrants towards locations that are operationally advantageous to DHS,” id.; “reduce the

27 enforcement footprint and compress USBP operations,” id. at 43; “enable CBP agents to focus less

28 on the rugged terrain,” id. at 69; and as noted above, “give a distinct and enduring advantage to 29

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 30 of 47

United States District Court Northern District of California

1 USBP as a force multiplier,” id. at 43; see also id. at 121–24. As DoD representatives have

2 forthrightly explained, funding under Section 2808 would “all go to adding significantly new

3 capabilities to DHS’s ability to prevent illegal entry.” See Sierra Club, No. 19-cv-00892-HSG,

4 Dkt. No. 210-2, Ex. 17 at 5.

5

That the border barrier projects would benefit DHS is unsurprising, as Congress

6 empowered that agency to “[s]ecur[e] the borders, territorial waters, ports, terminals, waterways,

7 and air, land, and sea transportation systems of the United States.” 6 U.S.C. § 202; see also 8

8 U.S.C. §§ 1103(a)(5) (charging the Secretary of Homeland Security with “the power and duty to

9 control and guard the boundaries and borders of the United States”). But this is a civilian agency,

10 and not part of the armed forces. The commission of these responsibilities to DHS is no secret:

11 the entire reason for the longest shutdown of the Federal government in history was that the

12 President sought over $5 billion in appropriations to DHS for these exact projects, and Congress

13 exercised its constitutional prerogative to decline to authorize that spending. Put another way, the

14 entire dispute in this case arises from the Executive’s efforts to find other ways to help DHS do

15 what Congress directly said it would not authorize when it rejected the Executive’s DHS budget

16 request.

17

Defendants suggest that the assistance to DHS is merely a byproduct of helping DoD. See,

18 e.g., California, No. 19-cv-00872-HSG, Dkt. No. 249 at 10. Yet the administrative record

19 suggests that the proposed projects may actually reduce DHS’s need for DoD support. See, e.g.,

20 AR at 4 (noting that the projects “could ultimately reduce the demand for DoD support at the

21 southern border over time”). As the President put it, “[i]f we had a wall, we don’t need the

22 military because we’d have a wall.” See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210-2, Ex.

23 13 at 5. Defendants do not explain how the projects are necessary to support the use of the armed

24 forces while simultaneously obviating the need for those forces. This appears to defy the purpose

25 of Section 2808, which specifically refers to construction that is necessary to support the use of the

26 armed forces, not to construction that the armed forces will not use once constructed. Again,

27 Defendants’ argument proves too much. Under their theory, any construction could be converted

28 into military construction—and funded through Section 2808—simply by sending armed forces 30

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 31 of 47

United States District Court Northern District of California

1 temporarily to provide logistical support to a civilian agency during construction. But Congress,

2 and not Defendants, holds the power of the purse. The Court declines to interpret Section 2808 to

3 provide the Secretary of Defense with almost limitless authority to use billions of dollars of its

4 appropriations to build projects for the benefit of DHS, even when Congress specifically declined

5 to give DHS itself the funds to build those projects. See, e.g., Util. Air Regulatory Grp., 573 U.S.

6 at 324 (“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast

7 economic and political significance.” (quotation omitted)).

8

The administrative record also fails to establish that the border barrier construction projects

9 are “necessary to support [] use of the armed forces.” See 10 U.S.C. § 2808(a) (emphasis added).

10 The Oxford English Dictionary defines “necessary” as “[i]ndispensable, vital, essential.” See

11 Necessary, OXFORD ENGLISH DICTIONARY ONLINE (last visited Nov. 20, 2019); accord MERRIAM-

12 WEBSTER ONLINE DICTIONARY (defining “necessary” as “absolutely needed: required”) (last

13 visited Nov. 20, 2019). Yet Defendants simply contend that the projects will “allow DoD to

14 provide support to DHS more efficiently and effectively.” See AR at 48. Even accepting this

15 conclusion as true, promoting efficiency and efficacy is not tantamount to necessity, given the

16 nature of the construction at issue. And the Court declines Defendants’ invitation to blur this

17 distinction. There is simply nothing in the record before the Court indicating that the eleven

18 border barrier projects—however helpful—are necessary to support the use of the armed forces.

19

The Court does not lightly reach the conclusion that the record does not support

20 Defendants’ claim of necessity here. The undersigned deeply respects the work of the United

21 States armed forces, and understands and is grateful for the innumerable sacrifices made by

22 military women and men, and their families, in service of our country. See California, No. 19-cv-

23 00872-HSG, Dkt. No. 232 (IAVA Brief) at 9 (“Service members are used to discomfort. They

24 signed up to endure hardships so that the rest of American society could live freely and

25 comfortably. . . . But they should never be asked to work in unnecessarily unsafe or harmful

26 conditions, or to wait even longer for basic facilities that are already long overdue.”). And the

27 Court has no doubt that Congress shares this respect and gratitude. Were this case about

28 constructing hangars for storage of aircraft used in “aerial reconnaissance,” or building a control 31

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 32 of 47

United States District Court Northern District of California

1 center for “operating mobile surveillance camera units,” AR at 42, the circumstances likely would

2 be very different.

3

But the Court cannot blind itself to the plain reality presented in this case: the border

4 barrier projects Defendants now assert are “necessary to support the use of the armed forces” are

5 the very same projects Defendants sought—and failed—to build under DHS’s civilian authority,

6 because Congress would not appropriate the requested funds. Even where review is “deferential,”

7 courts “are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” See Dep’t of

8 Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (quoting United States v. Stanchich, 550

9 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.)); see also Karnoski v. Trump, 926 F.3d 1180, 1202

10 (9th Cir. 2019) (“Of course, deference does not mean abdication.”) (quotation omitted). DoD

11 officials have forthrightly acknowledged that the border barrier projects are intended to fulfill the

12 President’s priorities. During a congressional hearing on the reprogramming of funds for border

13 barrier construction, Acting U.S. Secretary of Defense Shanahan explained that “given a legal

14 order from the commander in chief, we are executing on that order.” See John Wagner, Paul

15 Sonne, and Dan Lamothe, Pentagon announces $1 billion transfer for border barriers, angering

16 Democrats, Wash. Post (March 26, 2019), https://tinyurl.com/y2njmvsk. Similarly, when asked

17 during the hearing about prioritizing the border wall over military readiness and modernization,

18 U.S. Army Secretary Esper said “I’m saying that the Department of Defense made decisions based

19 on what the president set as priorities, and we are following through. We are executing.” Id.

20

The parties do not suggest that additional factfinding would buttress or clarify the rationale

21 or need for the projects. The Court therefore finds that the projects are not necessary to support

22 the use of the armed forces. As the Supreme Court has explained, “[r]egardless of how serious the

23 problem an administrative agency seeks to address, . . . it may not exercise its authority in a

24 manner that is inconsistent with the administrative structure that Congress enacted into law.” FDA

25 v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (quotation omitted).

26 Accordingly, taking into account the totality of the record, the Court finds that Defendants have

27 not satisfied the mandatory conditions set by Congress in Section 2808, and that they thus are not

28 authorized to redirect military construction funds to the eleven border barrier projects they have 32

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 33 of 47

United States District Court Northern District of California

1 identified.

2

C. APA

3

State Plaintiffs further contend that Defendants’ conduct is reviewable as unlawful under

4 the APA. Plaintiffs first suggest that by failing to comply with the statutory conditions in Section

5 2808, Defendants have acted “in excess of statutory jurisdiction, authority, or limitations, or short

6 of statutory right.” See 5 U.S.C. § 706(2)(C). Such arguments, however, collapse into the same

7 analysis of Section 2808 that the Court detailed in Section III.B above. See Sierra Club, 929 at

8 689–92. The Ninth Circuit acknowledged when analyzing Section 8005 that “Plaintiffs either

9 have an equitable cause of action to enjoin a constitutional violation, or they can proceed on their

10 constitutional claims under the Administrative Procedure Act, or both.” Id. at 676–77. However,

11 the analysis—whether under the Constitution or the APA—remains the same. Id.13

12

State Plaintiffs also make a second and distinct claim that Defendants have violated the

13 APA’s prohibition on arbitrary and capricious agency action. See California, No. 19-cv-00872-

14 HSG, Dkt. No. 220 at 13–15. Plaintiffs argue that in identifying and reallocating funds from 128

15 existing military construction projects, Defendants did not “address any of the harms to public

16 health and safety” that would result from defunding those projects. Id. at 13. The Court finds this

17 argument meritless. “The scope of review under the ‘arbitrary and capricious’ standard is narrow

18 and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of

19 U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, “the agency must

20 examine the relevant data and articulate a satisfactory explanation for its action including a

21 rational connection between the facts found and the choice made.” Id. (quotation omitted). Here,

22 the administrative record provides such an explanation, indicating that Defendants identified

23 projects for defunding to “provide [DoD] time to work with [Congress] to determine opportunities

24 to restore funds for these important military construction projects . . . .” California, No. 19-cv-

25

26 13 Although Sierra Club Plaintiffs do not raise an independent claim under the APA, they note, as

27

the Ninth Circuit has recognized, that the Court may consider their claim challenging the use of military construction funds either as an equitable action to enjoin unconstitutional conduct or

28

under the APA as final agency action that violates the Constitution. See Sierra Club, No. 19-cv00892-HSG, Dkt. No. 210 at 21–22 (citing Sierra Club, 929 at 676–77).

33

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 34 of 47

United States District Court Northern District of California

1 00872-HSG, Dkt. No. 206-2, Ex. 2 at 2. For the same reasons discussed above, it is not the

2 Court’s task to decide whether it finds the substance of Defendants’ rationale for defunding or

3 delaying these projects persuasive or wise, and State Plaintiffs’ disagreement with that rationale

4 does not make the decision arbitrary and capricious.

5

D. National Environmental Policy Act

6

Plaintiffs also seek a declaratory judgment deeming unlawful Defendants’ failure to

7 comply with NEPA before undertaking the proposed military construction projects under Section

8 2808.14 NEPA is intended “to promote efforts which will prevent or eliminate damage to the

9 environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321.

10 Under NEPA, federal agencies must assess the environmental impact of agency actions that

11 “significantly affect[ ] the quality of the human environment.” Id. § 4332(C). Where an agency’s

12 project “might significantly affect environmental quality,” NEPA compels preparation of an

13 Environmental Impact Statement (“EIS”). See WildEarth Guardians v. Provencio, 923 F.3d 655,

14 669 (9th Cir. 2019). Plaintiffs contend that Defendants were required to prepare an EIS for the

15 proposed border barrier construction projects, but failed to do so here.

16

In response, Defendants point to the language of Section 2808, which by its terms,

17 authorizes “the Secretary of Defense, without regard to any other provision of law, [to] undertake

18 military construction projects . . . .” 10 U.S.C. § 2808. The Secretary of Defense mirrored this

19 language in directing the Secretary of the Army “to expeditiously undertake the eleven border

20

21

14 State Plaintiffs also attempt to expand their NEPA cause of action to include the land transfer from the Department of the Interior for the proposed border barrier construction projects, but their

22

complaint does not assert such a claim. See California, No. 19-cv-00872-HSG, Dkt. No. 47 at ¶¶ 392–99. Rather, their NEPA claim explicitly states that “Defendant DHS is in violation of

23

NEPA and the APA because it failed to prepare an [Environmental Impact Statement] concerning border wall development projects that will have adverse effects on the environment . . . .” Id. at

24

¶ 397. Even reading the complaint liberally, the operative complaint does not “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” See Pickern v.

25

Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (holding district court did not err in finding plaintiff failed to provide adequate notice of her claims where she presented specific

26

factual grounds for those claims for first time on summary judgment) (quotation omitted). The Court may not now grant summary judgment as to a claim that State Plaintiffs never asserted until

27

their motion for summary judgment, when they never sought leave to amend the complaint. See Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put,

28

summary judgment is not a procedural second chance to flesh out inadequate pleadings.” (quotation omitted)).

34

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 35 of 47

United States District Court Northern District of California

1 barrier military construction projects,” and “to do so without regard to any other provision of law

2 that may impede the expeditious construction of such projects in response to the national

3 emergency.” See California, No. 19-cv-00872-HSG, Dkt. No. 206-1, Ex. 1 at 1. The Court finds

4 that the language in Section 2808 is clear on its face, and permits the Secretary of Defense, if

5 properly acting within his authority under Section 2808, to undertake military construction

6 projects without regard to NEPA.

7

Plaintiffs attempt to restrict this “notwithstanding” language by divorcing Defendants’

8 ability to re-prioritize military construction projects from their ability to actually construct those

9 projects. Plaintiffs urge that only the former power to “restructur[e] construction priorities” may

10 be undertaken “without regard to any other provision of law.” See, e.g., Sierra Club, No. 19-cv-

11 00892-HSG, Dkt. No. 210 at 19–20. The Court finds no evidence for this reading, as the statute

12 permits the Secretary to “undertake military construction projects,” not just to prioritize them.

13

Plaintiffs next contend that the Court should still read the “notwithstanding” language

14 narrowly because had Congress intended to waive NEPA’s requirements, the statute would have

15 included language that the projects be undertaken “without delay” or “expeditiously.” Id. at 20.

16 However, there are no magic words constraining Congress’ ability to empower Defendants to

17 proceed without consideration of NEPA or other laws. Rather, the Court must “tak[e] into account

18 the whole of the statutory context in which [the notwithstanding clause] appears.” See United

19 States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007). Here, Plaintiffs’ argument is belied by the

20 statutory prerequisite that there be a declaration of war or a national emergency before Section

21 2808 may be used for military construction. Such a condition, by its nature, normally would

22 require speed. The Court finds it unreasonable to conclude that in the face of war or a national

23 emergency, Congress would require Defendants to engage in the time-intensive EIS process prior

24 to undertaking projects “necessary to support [] use of the armed forces.” See 10 U.S.C. § 2808.

25 Plaintiffs’ concern that Section 2808 would “empower[] the Secretary of Defense to build almost

26 anything, anywhere,” see Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 210 at 21, ignores the

27 conditions discussed in Section III.B.ii above. Section 2808 has limits. It may only be invoked in

28 the event of war or a national emergency, and the Secretary of Defense still must establish that the 35

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 36 of 47

United States District Court Northern District of California

1 proposal is a military construction project necessary to support the use of the armed forces.

2

This does not, however, end the inquiry. To be sure, had Defendants acted within their

3 authority under Section 2808 in proposing the eleven border barrier construction projects, the

4 Court finds that their conduct likely would not violate NEPA. But the Court has already found

5 that Defendants have not properly invoked Section 2808, so that the “without regard to any other

6 provision of law” language is not triggered. Put another way, the question of whether Defendants

7 are required to comply with NEPA with respect to the eleven projects is derivative of the parties’

8 Section 2808 arguments. The Court does not understand Defendants to suggest that any authority

9 other than Section 2808 excuses them from complying with NEPA as to these projects. The Court

10 thus need not reach whether a proper invocation of Section 2808 could theoretically still require

11 compliance with NEPA under different circumstances.15

12

E. Injunctive Relief

13

Having found that Defendants’ intended use of military construction funds under Section

14 2808 is unlawful, the Court next considers Plaintiffs’ request for injunctive relief. It is a well-

15 established principle of equity that a permanent injunction is appropriate when: (1) a plaintiff will

16 “suffer[ ] an irreparable injury” absent an injunction; (2) available remedies at law are

17 “inadequate;” (3) the “balance of hardships” between the parties supports an equitable remedy;

18 and (4) the public interest is “not disserved.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391

19 (2006). Defendants do not challenge whether the available remedies at law are inadequate. See,

20 e.g., Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 236 at 28–34. The Court thus addresses the

21 remaining factors.

22

i. Irreparable Injury

23

The State Plaintiffs identify several theories of irreparable injury that will occur in the

24 absence of an injunction, including environmental and financial harm, as well as harm to their

25

26

15 State Plaintiffs appear to seek reconsideration of the Court’s prior order regarding whether Defendants violated NEPA for purposes of Section 8005 and 10 U.S.C. § 284. See California,

27

No. 19-cv-00872-HSG, Dkt. No. 220, at 5, 19–20, & n.3. State Plaintiffs acknowledge that they do so to preserve this issue for appeal. Id. at 5, n.3. The Court declines to reconsider its prior

28

order given Plaintiffs have failed to provide any new law or factual evidence warranting further analysis.

36

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 37 of 47

United States District Court Northern District of California

1 ability to enforce state laws concerning the protection of environmental and natural resources. The

2 Sierra Club Plaintiffs, in turn, identify aesthetic and recreational harm, as well as organizational

3 harm to their missions in diverting resources to respond to Defendants’ proposed projects. The

4 Court recognizes that these injuries are distinct, and first addresses the Sierra Club Plaintiffs’

5 alleged injuries. Because, as explained more fully below, the Court finds that Sierra Club

6 Plaintiffs have established that a permanent injunction is warranted as to all eleven proposed

7 projects, the Court denies State Plaintiffs’ duplicative request for a permanent injunction as moot.

8

a. Aesthetic and Recreational Harm

9

Sierra Club Plaintiffs contend that absent a permanent injunction Defendants’ conduct will

10 irreparably harm their members’ aesthetic and recreational interests as the construction “will

11 impede [their] ability to enjoy, work, and create in the wilderness areas they have used for years

12 along the U.S.-Mexico border.” See Sierra Club, 19-cv-00892-HSG, Dkt. No. 210 at 26. As this

13 Court has previously noted, “it is well-established in the Ninth Circuit that an organization can

14 demonstrate irreparable harm by showing that the challenged action will injure its members’

15 enjoyment of public land. See id., Dkt. No. 144 at 49 (citing All. for the Wild Rockies v. Cottrell,

16 632 F.3d 1127, 1135 (9th Cir. 2011)). And here, Plaintiffs provide declarations from their

17 members detailing how Defendants’ eleven proposed border barrier construction projects will

18 harm their ability to recreate in and otherwise enjoy public land along the border. See, e.g., id.,

19 Dkt. No. 210-1, Exs. 1–19.

20

In response, Defendants attempt to minimize Plaintiffs’ injuries by arguing that many of

21 the challenged construction projects are surrounded by private land or are in areas previously

22 disturbed by at least some border barrier construction. See id., Dkt. Nos. 236 at 28–31, 236-6, Ex.

23 6. Defendants further suggest that any access limitations imposed by the new construction would

24 be de minimis, especially as to the two projects on the Barry M. Goldwater Range, where only a

25 third of the miles scheduled for construction are accessible to the public. See id., Dkt. No. 236 at

26 30. Defendants conclude that Plaintiffs’ asserted harm is thus little more than their subjective

27 opinion about whether a border wall would be unsightly. Id. The Court is not persuaded.

28

As an initial matter, the Ninth Circuit has “never required a plaintiff to show that he has a

37

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 38 of 47

United States District Court Northern District of California

1 right of access to the site on which the challenged activity is occurring, or that he has an absolute

2 right to enjoy the aesthetic or recreational activities that form the basis of his concrete interest.”

3 Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001). In Cantrell, for example, the

4 Ninth Circuit credited birdwatchers’ allegations that they would suffer harm from the defendant’s

5 construction, which would hinder them from viewing birds and nests on a naval station from

6 publicly accessible locations. Such an approach is sensible as “an area can be observed and

7 enjoyed from adjacent land,” such that plaintiffs may still suffer injury to their aesthetic and

8 recreational interests even when not physically on the affected land. See id. Here too, Plaintiffs

9 have explained that the proposed projects may be seen from miles away, and affect their

10 recreational and aesthetic interests, even when they are not standing directly on the areas proposed

11 for construction. See, e.g., Sierra Club, 19-cv-00892-HSG, Dkt. No. 210-1, Ex. 4; id., Ex. 9.

12

Defendants’ reliance on Center for Food Safety v. Vilsack does not undermine the

13 significance of Plaintiffs’ injury. Defendants point to a sentence in a footnote that states “a

14 plaintiff may establish standing to seek injunctive relief yet fail to show the likelihood of

15 irreparable harm necessary to obtain it.” 636 F.3d 1166, 1171, n.6 (9th Cir. 2011). This point is

16 true as far as it goes, but the plaintiffs in Vilsack had only raised possible concerns about genetic

17 contamination, not a likelihood of injury. Id. at 1173. In Vilsack, the plaintiffs suggested that the

18 defendants’ genetically modified sugar beets could cross-pollinate with their crops, causing injury.

19 See id. at 1172. The Ninth Circuit explained that the undisputed evidence, however, indicated that

20 the defendants’ plants were “biologically incapable of flowering or cross-pollinating” in a way

21 that could affect the plaintiffs’ plants. Id. at 1173. Because the alleged harm was a biological

22 impossibility, the Ninth Circuit found that there was no likelihood of irreparable injury warranting

23 an injunction.

24

Here, in contrast, Plaintiffs have detailed the harm that would result if the border barrier

25 construction projects continue. Defendants’ argument in response is that the land for the

26 challenged projects “is already heavily disturbed with border infrastructure” as much of the land

27 occupies existing “law enforcement corridors.” Sierra Club, 19-cv-00892-HSG, Dkt. No. 236 at

28 28. But as the Court has previously explained, Defendants’ proposal would significantly alter the 38

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 39 of 47

United States District Court Northern District of California

1 existing landscape, and even the proposed changes to the existing infrastructure are substantial.

2 See id., Dkt. No. 144 at 50.

3

The Court is also not persuaded that the preexistence of some construction means Plaintiffs

4 here cannot suffer an injury from additional construction. Defendants do not cite a case that

5 warrants such a sweeping limitation. In Gallatin Wildlife Association v. U.S. Forest Services, the

6 plaintiffs sought to enjoin sheep grazing that had occurred for the past 150 years. See No. cv 15-

7 27-BU-BMM, 2015 WL 4528611, at *4 (D. Mont. July 27, 2015). The court found that the

8 plaintiffs had “failed to demonstrate that allowing the domestic grazing to occur this year will

9 cause any new harm to the landscape that has not already occurred in the past 150 years.” Id.

10 That the sheep had grazed in the area before was not itself decisive; instead, the court considered

11 the nature and scale of their continued and additive effect on the land at issue. And in Center for

12 Biological Diversity v. Hays, the court found that the plaintiffs had not established irreparable

13 injury where the land at issue could not be used for recreational purposes at all due to the scale of

14 preexisting dead trees that threatened the safety of visitors. No. 2:15-cv-01627-TLN-CMK, 2015

15 WL 5916739, at *1, *10 (E.D. Cal. Oct. 8, 2015). The plaintiff’s interest in studying these trees

16 was thus irrelevant as he could not access them regardless of the defendant’s conduct. Id.

17

In sum, the Court finds that the funding and construction of these border barrier projects, if

18 indeed barred by law, cannot be easily remedied after the fact. To the contrary, as the Ninth

19 Circuit has acknowledged, “[t]he harm here, as with many instances of this kind of harm, is

20 irreparable for the purposes of the preliminary injunction analysis.” See League of Wilderness

21 Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 764 (9th Cir.

22 2014). Accordingly, the Court finds that Sierra Club Plaintiffs have established irreparable injury

23 to their aesthetic and recreational interests in the absence of a permanent injunction.

24

b. Organizational Harm

25

Sierra Club Plaintiffs further contend that Defendants’ conduct has irreparably harmed the

26 missions and activities of the Southern Border Communities Coalition (“SBCC”) and its member

27 organizations, which include the Texas Civil Rights Project (“TCRP”), Southwest Environmental

28 Center (“SWEC”), and American Friends Service Committee (“AFSC”). Each has had to divert 39

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 40 of 47

United States District Court Northern District of California

1 resources to combat the impact of the proposed construction.

2

The Supreme Court has recognized that an organization may suffer harm if the challenged

3 conduct frustrates its activities and drains its resources. See, e.g., Havens Realty Corp. v.

4 Coleman, 455 U.S. 363, 377–79 (1982). In Havens Reality, a nonprofit corporation challenged the

5 defendants’ alleged “racial steering” practices, in which real estate brokers encouraged racial

6 segregation by directing members of racial or ethnic groups to buildings or neighborhoods

7 occupied primarily by members of the same race of ethnic group. Id. at 367, & n.1. The

8 organization’s “purpose was to make equal opportunity in housing a reality . . . .” Id. at 368

9 (quotation omitted). The Supreme Court explained that the organization’s need to divert resources

10 “to identify and counteract” the defendants’ discriminatory practices “constitute[d] far more than

11 simply a setback to the organization’s abstract social interests” in equal access to housing. See id.

12 at 379–80. Similarly, in National Council of La Raza v. Cegavske, the Ninth Circuit further

13 recognized that an organization may establish concrete harm if the defendant’s conduct changes

14 “business as usual” for the organization, such that resources spent to counter a defendant’s

15 conduct “would have [been] spent on some other aspect of their organizational purpose . . . or any

16 other activity that advances their goals.” 800 F.3d 1032, 1040 (9th Cir. 2015) (quotation omitted).

17 In Cegavske, the Ninth Circuit acknowledged that had the state complied with the National Voter

18 Registration Act, the organization could have spent its resources elsewhere, such as increasing its

19 voter education efforts, rather than on voter registration drives in communities where the

20 defendant should have offered voter registration opportunities. Id.; accord Fair Hous. Council of

21 San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012).

22

That is precisely what Plaintiffs have established here, as Defendants’ conduct has

23 significantly altered “business as usual” for the Plaintiff organizations, and will continue to do so

24 without a permanent injunction:

25

• SBCC’s “principal goals are to protect human rights, dignity, and safety” in the

26

border regions of the United States. Sierra Club, No. 19-cv-00892-HSG, Dkt.

27

No. 210-1, Ex. 7 at 41–46. SBCC has spent considerable time and resources

28

advocating against appropriations for border barrier construction and in urging

40

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 41 of 47

United States District Court Northern District of California

1

Congress to terminate the national emergency. As a result, SBCC has diverted

2

time and resources away from its “other initiatives, including Border Patrol

3

accountability, community engagement on local health and education issues,

4

and public education about immigration policies more broadly.” Id. at 45.

5

• TCRP has diverted resources to protect Texas landowners in Laredo who are at

6

risk of having their non-public property condemned for the border barrier

7

construction projects, id., Ex. 6 at 35–39. They have staged events to educate

8

communities about these projects and their rights, are working to create a

9

network of advocates for this work. Because of this work, TCRP has had to

10

divert time and resources away from their other projects to protect border

11

communities outside of Laredo.

12

• SWEC’s mission is to “reverse the accelerating loss of plants and animals

13

worldwide through protection and restoration of native wildlife and their

14

habitats in the southwest.” Id., Ex. 3 at 16–17. Though based in New Mexico,

15

its restoration and education work extends into Eastern Arizona and West

16

Texas. However, in light of the proposed border barrier projects, SWEC has

17

significantly reduced its restoration work to divert resources to monitor

18

construction and educate members and the public about the proposed

19

construction and its likely impact.

20

• AFSC works with migrant communities in San Diego and El Centro to

21

document abuses by law enforcement and collaborate with community groups

22

to address local issues. Id., Ex. 13 at 74–75. However, if the border barrier

23

projects in these areas proceed, they will have to decrease the time and

24

resources they spend on their other services, including know-your-rights

25

trainings and leadership development courses, so they can monitor the

26

construction and provide outreach resources to the affected communities.

27

Defendants counter that Plaintiffs’ missions as public advocacy groups have not been

28 injured, and more critically still, that Plaintiffs have not established any nexus between their injury 41

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 42 of 47

United States District Court Northern District of California

1 and Defendants’ conduct. Defendants first contend that the organizations may continue their

2 advocacy work in the face of the border barrier projects, but as the Ninth Circuit recognized in

3 Cegavske, it is enough that these organizations “would have spent [resources] on some other

4 aspect of their organizational purpose . . . or any other activity that advances their goals,” in the

5 absence of the border barrier construction projects. See 800 F.3d at 1040. Here, the Plaintiff

6 organizations have spent resources creating new education, outreach, and monitoring programs

7 related to the construction projects, rather than on other activities related to their respective

8 missions. Defendants’ suggestion that there is no nexus between Plaintiffs’ harm and Defendants’

9 conduct is similarly unavailing. The organizations work in and with border communities to

10 protect and restore the environment, as is the case with SWEC, and promote the safety of border

11 communities, as is the case with SBCC, TCRP, and AFSC. But because the organizations believe

12 the border barrier projects impede these respective missions, they have altered “business as usual”

13 to combat these projects and educate others about them. Defendants’ blanket conclusion that the

14 border barrier construction projects “in no way impede or disrupt their day-to-day activities,”

15 Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 247 at 24, simply is not supported by the record.

16 The Court finds that Sierra Club Plaintiffs have thus established irreparable injury to their

17 organizational missions in the absence of a permanent injunction.

18

i. Balance of Equities and Public Interest

19

The parties all acknowledge that when the government is a party to a case in which a

20 preliminary injunction is sought, the balance of the equities and public interest factors merge. See

21 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). And in these cases, the

22 parties’ asserted injuries collapse into the equities they assert.

23

According to Defendants, these factors tilt in their favor, because they have “compelling

24 interests in safety and in the integrity of our borders,” and “in ensuring that [the country’s]

25 military forces are properly supported and have the necessary resources to ensure mission

26 success.” See Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 236 at 33. As the Court has

27 previously acknowledged, “the public has a ‘weighty’ interest ‘in efficient administration of the

28 immigration laws at the border.’” See E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 42

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 43 of 47

United States District Court Northern District of California

1 (9th Cir. 2018) (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)).

2

Yet Defendants’ argument again fails to recognize that Congress has already engaged in

3 the difficult balancing of Defendants’ proffered interests and the need for border barrier

4 construction in passing the CAA. See CAA, § 230(a)(1), 133 Stat. 13. Defendants have not

5 pointed to any factual developments that were not before Congress and that may have altered its

6 judgment to appropriate just $1.375 billion in funding for limited border barrier construction. The

7 Court appreciates the complexity of the policy judgments at hand, and further understands that

8 Defendants may strongly disagree with Congress’ determination. But the Court has found that

9 Defendants do not have the statutory authority under Section 2808 to redirect military construction

10 funds for the planned border barrier construction. And as such, Defendants have not identified a

11 mechanism by which they may override Congress’ appropriations judgment. As the Court

12 explained in its orders related to Section 8005, “Defendants’ position on these factors boils down

13 to an argument that the Court should not enjoin conduct found to be unlawful because the ends

14 justify the means. No case supports this principle.” See Sierra Club, 19-cv-00892-HSG, Dkt. No.

15 185 at 8. The Court finds that “the public [] has an interest in ensuring that statutes enacted by

16 their representatives are not imperiled by executive fiat,” E. Bay Sanctuary Covenant, 932 F3d at

17 779, and that these constitutional separation of powers principles outweigh Defendants’ concerns

18 about the efficiency of DHS. Accordingly, the Court follows the Ninth Circuit’s reasoning that

19 the public interest “is best served by respecting the Constitution’s assignment of the power of the

20 purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected

21 in its repeated denial of more funding for border barrier construction.” Sierra Club, 929 F.3d at

22 677.

23

In his concurrence in the landmark 1952 case of Youngstown Sheet and Tube Co. v.

24 Sawyer, which addressed the scope of executive power during a time of war on the Korean

25 Peninsula, Justice Frankfurter articulated a principle that remains as important today as it was

26 then: 27 28

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did
43

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 44 of 47

United States District Court Northern District of California

specifically address itself to a problem, as Congress did to that of

1

seizure [of steel mills by the President], to find secreted in the

interstices of legislation the very grant of power which Congress

2

consciously withheld. To find authority so explicitly withheld is not

merely to disregard in a particular instance the clear will of Congress.

3

It is to disrespect the whole legislative process and the constitutional

division of authority between President and Congress. 4

5 343 U.S. 579, 610 (Frankfurter, J., concurring).

6

After a lengthy legislative process, Congress specifically declined to provide the funding

7 sought by the Executive for the border barrier construction at issue in this case. The Executive has

8 made plain its determination to nonetheless proceed with the construction by any means necessary,

9 notwithstanding Congress’ contrary exercise of its constitutionally-absolute power of the purse.

10 As Justice Frankfurter explained long ago, that position both disregards the clear will of Congress

11 and disrespects the whole legislative process and the separation of powers enshrined in the

12 Constitution. Because the Court finds Defendants’ proposed use of funds under Section 2808

13 unlawful, the Court finds that the balance of hardships and public interest favor Plaintiffs, and 14 counsel in favor of a permanent injunction.16

15 IV. STAY PENDING APPEAL

16

Federal Rule of Civil Procedure 62(c) authorizes a district court to stay enforcement of a

17 permanent injunction pending appeal. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “A

18 stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder,

19 556 U.S. 418, 427 (2009) (quotation omitted). Rather, the decision to grant or deny a stay is

20 committed to the district court’s discretion. Id. In determining whether to issue a stay, a court

21 examines several factors including: (1) whether the applicant has made a strong showing that he is

22 likely to succeed on the merits of the appeal; (2) whether the applicant will be irreparably injured

23 absent a stay; (3) whether a stay will substantially injure the non-moving party; and (4) where the

24 public interest lies. See Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011).

25

26

16 The Court further notes that on December 10, 2019, the United States District Court for the Western District of Texas also entered an order permanently enjoining “agency head Defendants

27

Mark T. Esper, Chad F. Wilf, Todd, T. Semonite, David Bernhardt, and Steven T. Mnuchin . . . from using § 2808 funds beyond the $1.375 billion in the 2019 Consolidated Appropriations Act

28

for border wall construction.” See El Paso County v. Trump, No. 3:19-cv-0066-DB (W.D. Tex.), Dkt. No. 136 at 21.

44

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 45 of 47

United States District Court Northern District of California

1

Although the Court has considered similar factors as part of its permanent injunction

2 analysis above, the Supreme Court’s stay of this Court’s prior injunction order appears to reflect

3 the conclusion of a majority of that Court that the challenged construction should be permitted to

4 proceed pending resolution of the merits. Accordingly, the Court finds in its discretion that the

5 lengthy history of this action; the prior appellate record; and the pending appeal before the Ninth

6 Circuit on the merits of Plaintiffs’ Section 8005 claim, which will address several of the threshold

7 legal and factual issues raised in this order, warrant a stay of the permanent injunction pending

8 appeal. Plaintiffs may, of course, petition the Ninth Circuit to lift this stay.

9 V. CERTIFICATION FOR APPEAL

10

Given the parties’ express request to certify for appeal the Court’s prior orders regarding

11 Section 8005, the Court also considers whether certification is appropriate here. Appellate courts

12 generally only have jurisdiction to hear appeals from final orders. See 28 U.S.C. § 1291. Federal

13 Rule of Civil Procedure 54(b) allows for a narrow exception to this final judgment rule, permitting

14 courts to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties

15 only if the court expressly determines that there is no just reason for delay.” Entry of judgment

16 under Rule 54(b) thus requires: (1) a final judgment; and (2) a determination that there is no just

17 reason for delay of entry. See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 574 (9th Cir.

18 2018) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7–8 (1980)). The Court finds

19 both requirements satisfied here.

20

A. Finality of Judgment

21

A final judgment is “a decision upon a cognizable claim for relief” that is “an ultimate

22 disposition of an individual claim entered in the course of a multiple claims action.” Curtiss-

23 Wright Corp., 446 U.S. at 7. The Court finds this requirement satisfied because the Court’s award

24 of partial summary judgment in this order is “an ultimate disposition” of Plaintiffs’ claims related

25 to Defendants’ purported reliance on Section 2808 for border barrier construction.

26

B. No Just Reason for Delay

27

As the Ninth Circuit has explained, “[j]udgments under Rule 54(b) must be reserved for

28 the unusual case in which the costs and risks of multiplying the number of proceedings and of 45

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 46 of 47

United States District Court Northern District of California

1 overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early

2 and separate judgment as to some claims or parties.” Morrison-Knudsen Co. v. Archer, 655 F.2d

3 962, 965 (9th Cir. 1981). Accordingly, an explanation of findings “should include a determination

4 whether, upon any review of the judgment entered under the rule, the appellate court will be

5 required to address legal or factual issues that are similar to those contained in the claims still

6 pending before the trial court.” Id. at 965. “The greater the overlap the greater the chance that

7 [the Court of Appeals] will have to revisit the same facts—spun only slightly differently—in a

8 successive appeal.” Wood v. GCC Bend, LLC, 422 F.3d 873, 882 (9th Cir. 2005). “[P]lainly,

9 sound judicial administration does not require that Rule 54(b) requests be granted routinely.” Id.

10 at 879 (quotation omitted).

11

As with its partial summary judgment order related to Section 8005, the Court finds there

12 is no just reason for delay under the circumstances. Whether Defendants’ actions comport with

13 the statutory requirements of Section 2808 and whether Defendants’ actions comport with the

14 remaining statutory requirements related to the outstanding claims are distinct inquiries, largely

15 based on distinct law. The Court therefore finds that “sound judicial administration” is best served

16 by the Court certifying this judgment for appeal, in light of the undisputedly significant interests at

17 stake in this case. See Wood, 422 F.3d at 879.

18 VI. CONCLUSION

19

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

20 Plaintiffs’ motions for partial summary judgment and DENIES Defendants’ motions for partial

21 summary judgment. Specifically, the Court GRANTS Plaintiffs’ request for declaratory judgment

22 that Defendants’ intended use of military construction funds under Section 2808 for the eleven

23 border barrier construction projects that the Secretary of Defense identified as Yuma Project 2;

24 Yuma Project 10/27; Yuma Project 3; Yuma Project 6; San Diego Project 4; San Diego Project 11;

25 El Paso Project 2; El Paso Project 8; Laredo Project 5; Laredo Project 7; El Centro Project 5; and

26 El Centro Project 9, is unlawful. See Sierra Club, No. 19-cv-00892-HSG, Dkt. Nos. 201, 201-1,

27 & Ex. 1. The Court DENIES Plaintiffs’ request for declaratory judgment and injunctive relief

28 concerning Defendants’ (1) invocation of Section 2808 beyond these projects; (2) reliance on 46

Case 4:19-cv-00892-HSG Document 258 Filed 12/11/19 Page 47 of 47

United States District Court Northern District of California

1 Section 2808 to excuse them from complying with NEPA as to the eleven proposed projects; and

2 (3) decision to defer outstanding military construction projects.

3

The terms of the permanent injunction are as follows: Defendants Mark T. Esper, in his

4 official capacity as Secretary of Defense; and Chad F. Wolf, in his official capacity as Acting

5 Secretary of Homeland Security (collectively, “Defendants”), and all persons acting under their

6 direction, are permanently enjoined from using military construction funds appropriated for other

7 purposes to build a border wall in the areas Defendants have identified as Yuma Project 2; Yuma

8 Project 10/27; Yuma Project 3; Yuma Project 6; San Diego Project 4; San Diego Project 11; El

9 Paso Project 2; El Paso Project 8; Laredo Project 5; Laredo Project 7; El Centro Project 5; and El

10 Centro Project 9. Nevertheless, as discussed in Section IV above, the Court exercises its

11 discretion to STAY the permanent injunction pending appeal.

12

The Clerk is directed to enter final judgment in favor of Plaintiffs and against Defendants

13 with respect to Defendants’ purported reliance on Section 2808 to fund border barrier

14 construction. This judgment will be certified for immediate appeal pursuant to Rule 54(b) of the

15 Federal Rules of Civil Procedure.

16

IT IS SO ORDERED.

17 Dated: 12/11/2019

18

______________________________________

19

HAYWOOD S. GILLIAM, JR. United States District Judge

20

21

22

23

24

25

26

27

28 47

 
 CCaassee4::19-1c7v-500018,9122-/H3S0/G201D9o, cIDum: 1e1n5t42660351F, iDlekdtE1n2t/r3y0: /1129, PPaaggee11oof f22
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DEC 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al.,
Defendants-Appellants.

No. 19-17501 D.C. No. 4:19-cv-00892-HSG Northern District of California, Oakland
ORDER

Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges.

Plaintiffs Sierra Club and Southern Border Communities Coalition have filed an emergency motion to lift the district court’s stay of its injunction pending appeal. The district court injunction permanently enjoined spending funds under 10 U.S.C. § 2808 for eleven specified border barrier construction projects, but the district court stayed the injunction pending appeal. Defendants oppose the motion to lift the stay.

CCaassee4::19-1c7v-500018,9122-/H3S0/G201D9o, cIDum: 1e1n5t42660351F, iDlekdtE1n2t/r3y0: /1129, PPaaggee22oof f22
We deny the request to lift the stay, without prejudice. The district court in the Western District of Texas has issued a substantially similar injunction precluding using § 2808 funds beyond what Congress has otherwise appropriated for border wall construction. See El Paso Cty v. Trump, No. EP-19-CV-66-DB (W.D. Tex. Dec. 10, 2019). In addition, the Supreme Court has already stayed an injunction previously granted by the district court in this case. See Trump v. Sierra Club, 140 S. Ct. 1 (2019). As the district court concluded, “the Supreme Court’s stay of this Court’s prior injunction order appears to reflect the conclusion of a majority of that Court that the challenged construction should be permitted to proceed pending resolution of the merits.” Sierra Club v. Trump, No. 4:19-cv00892-HSG (N.D. Cal. Dec. 11, 2019). Given the existence of a spending injunction and the Supreme Court’s stay order, we decline to reverse the district court’s grant of a stay pending appeal at this time, without prejudice to renewal or reconsideration pending further developments. In doing so, we express no view as to the merits of the case.
2

 
 Case 4:19-cv-00892-HSG Document 281 Filed 02/14/20 Page 1 of 4

1

DAVID M. MORRELL Deputy Assistant Attorney General

2 ALEXANDER K. HAAS
Director, Federal Programs Branch 3 ANTHONY J. COPPOLINO

4

Deputy Director, Federal Programs Branch ANDREW I. WARDEN (IN #23840-49)

5 Senior Trial Counsel

KATHRYN C. DAVIS 6 MICHAEL J. GERARDI

7 LESLIE COOPER VIGEN RACHAEL WESTMORELAND

8 Trial Attorneys

U.S. Department of Justice 9 Civil Division, Federal Programs Branch

10 1100 L Street, NW Washington, D.C. 20530

11 Tel.: (202) 616-5084

Fax: (202) 616-8470 12 Attorneys for Defendants

13 UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION 15

16 STATE OF CALIFORNIA, et al.,
17 Plaintiffs,
18 v.
19 DONALD J. TRUMP, et al.,
20
Defendants. 21

No. 4:19-cv-00872-HSG No. 4:19-cv-00892-HSG
JOINT STATEMENT IN RESPONSE TO THE COURT’S FEBRUARY 7, 2020 ORDER

22

23 SIERRA CLUB, et al.,

24

Plaintiffs,

25

v.

26 DONALD J. TRUMP, et al.,

27

Defendants.

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Statement re: Case Closure Sierra Club et al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Statement re: Case Closure

Case 4:19-cv-00892-HSG Document 281 Filed 02/14/20 Page 2 of 4

1

The parties hereby submit the following joint statement in response to the Court’s

2 February 7, 2020 Order to Show Cause why judgment should not be entered and the above-

3 captioned cases closed.

4

The parties agree that all of the claims asserted by Plaintiffs challenging Defendants’

5 funding and construction of border barriers in fiscal year 2019 have been fully and finally

6 resolved by the Court. However, in light of Defendants’ notification on February 13, 2020, that

7 the Department of Defense intends to fund and construct additional border barrier projects in

8 fiscal year 2020 as soon as March 15, 2020, relying on identical statutory authorities as those

9 examined by this Court, the parties anticipate litigating these new projects shortly. The parties

10 agree that it would be more efficient for this litigation to be addressed in the context of the current

11 civil actions given the extensive history of these cases and the parties’ expectation that litigation

12 over the fiscal year 2020 projects will likely involve many of the same issues as the prior

13 litigation.

14

To avoid any potential procedural complications with the pending appeals by continuing

15 to litigate these matters in the above-captioned cases, the parties agree that Plaintiffs will bring

16 the new challenges to Defendants’ actions as to fiscal year 2020 by amending the currently

17 operative complaints to include new claims addressing the 2020 actions.

18

For these reasons, the parties respectfully request that these cases remain open to litigate

19 Plaintiffs’ anticipated challenges to Defendants’ funding and construction of border barrier

20 projects in fiscal year 2020.

21

22

23 DATE: February 14, 2020

Respectfully submitted,

24

DAVID M. MORRELL

25

Deputy Assistant Attorney General

26 ALEXANDER K. HAAS

27

Director, Federal Programs Branch

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Statement re: Case Closure Sierra Club et al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Statement re: Case Closure
1

Case 4:19-cv-00892-HSG Document 281 Filed 02/14/20 Page 3 of 4

1

ANTHONY J. COPPOLINO Deputy Director, Federal Programs Branch

2

3

/s/ Andrew I. Warden

4

ANDREW I. WARDEN (IN #23840-49) Senior Trial Counsel

5

KATHRYN C. DAVIS

6

MICHAEL J. GERARDI

7

LESLIE COOPER VIGEN

RACHAEL WESTMORELAND

8

Trial Attorneys

U.S. Department of Justice

9

Civil Division, Federal Programs Branch

10

1100 L Street, NW

Washington, D.C. 20530

11

Tel.: (202) 616-5084

Fax: (202) 616-8470

12

Attorneys for Defendants

13

14

15

/s/ Dror Ladin

Dror Ladin

16

Noor Zafar

17

Jonathan Hafetz

Hina Shamsi

18

Omar C. Jadwat

19

American Civil Liberties Union Foundation 125 Broad Street, 18th Floor

20

New York, NY 10004

Tel.: (212) 549-2660

21

Fax: (212) 549-2564

22

dladin@aclu.org nzafar@aclu.org

23

jhafetz@aclu.org

hshamsi@aclu.org

24

ojadwat@aclu.org

25

Attorneys for Plaintiffs in 4:19-cv-892-HSG

26

27

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Statement re: Case Closure Sierra Club et al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Statement re: Case Closure
2

Case 4:19-cv-00892-HSG Document 281 Filed 02/14/20 Page 4 of 4

1

XAVIER BECERRA

2

Attorney General of California

ROBERT W. BYRNE

3

MICHAEL L. NEWMAN

4

Senior Assistant Attorneys General HARRISON M. POLLACK

5

Acting Senior Assistant Attorney General

MICHAEL P. CAYABAN

6

CHRISTINE CHUANG

7

EDWARD H. OCHOA

Supervising Deputy Attorneys General

8

BRIAN J. BILFORD

SPARSH S. KHANDESHI

9

HEATHER C. LESLIE

10

JANELLE M. SMITH

LEE I. SHERMAN

11

12

/s/ James F. Zahradka II

13

JAMES F. ZAHRADKA II

Deputy Attorneys General

14

1515 Clay Street, Suite 2000

Oakland, CA 94612

15

Tel.: (510) 879-1247

16

Fax: (510) 622-2270

E-mail: James.Zahradka@doj.ca.gov

17 Attorneys for Plaintiffs 4:19-cv-872-HSG

18

19

20

21

22

23

24

25

26

27

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Statement re: Case Closure Sierra Club et al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Statement re: Case Closure
3

 
 CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee11ooff8822

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; MARK T. ESPER, in his official capacity as Secretary of the Defense; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the Department of the Treasury,
Defendants-Appellants.

Nos. 19-16102 19-16300
D.C. No. 4:19-cv-00892-
HSG
OPINION

Appeal from the United States District Court for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted November 12, 2019 San Francisco, California
Filed June 26, 2020

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee22ooff8822

2

SIERRA CLUB V. TRUMP

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges.

Opinion by Chief Judge Thomas; Dissent by Judge Collins

SUMMARY*

Appropriations
The panel affirmed the district court’s judgment in an action brought by the Sierra Club and the Southern Border Communities Coalition (collectively the “Sierra Club”) challenging the Department of Defense’s budgetary transfers to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona.
At issue is whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 (“Section 8005”) authorized the budgetary transfers to fund construction of the wall.
The panel held that the Sierra Club had Article III standing to pursue its claims. Specifically, the panel held that Sierra Club’s thousands of members live near and frequently visit areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities; and construction of a border wall and related infrastructure will acutely injure these
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee33ooff8822

SIERRA CLUB V. TRUMP

3

interests because the Department of Homeland Security is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests. Additionally, the interests of Sierra Club’s members in the lawsuit are germane to the organization’s purpose. Similarly, the panel held that the Southern Border Communities Coalition alleged facts that support that it had standing to sue on behalf of itself and its member organizations. The panel further held that Sierra Club’s injuries were fairly traceable to the Section 8005 transfers. In addition, the panel held that the injury to Sierra Club members and Southern Border Communities Coalition was likely to be redressed by a favorable judicial decision.

In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here.

The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful.

The panel held that the Sierra Club was a proper party to challenge the Section 8005 transfers, and concluded that Sierra Club had both a constitutional and an ultra vires cause of action. First, the panel held that where plaintiffs, like Sierra Club, establish that they satisfy the requirements of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee44ooff8822

4

SIERRA CLUB V. TRUMP

Article III standing, they may invoke separation of powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority. Because the federal defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, the panel held that Sierra Club had a constitutional cause of action. Second, the panel held that the Sierra Club had an equitable ultra vires cause of action to challenge the Department of Defense’s transfer of funds. Where it is alleged that the Department of Defense has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.

The panel rejected the federal defendants’ additional arguments. First, the federal defendants asserted that Sierra Club’s challenge must be construed as an Administrative Procedure Act (“APA”) claim, rather than as a constitutional or ultra vivres cause of action. The panel held that the APA is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action. Second, the federal defendants asserted that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. The panel held that Sierra Club fell within the Appropriations Clause’s zone of interests. The unconstitutional transfer of funds here infringed upon Sierra Club’s members’ liberty interests, harming their environmental, aesthetic, and recreational interests. The panel concluded that the Sierra Club had a cause of action to challenge the transfers.

Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee55ooff8822

SIERRA CLUB V. TRUMP

5

enjoining the federal defendants from spending the funds at issue. First, the panel agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. Second, the panel agreed with the district court that the balance of equities and the public interest favored injunctive relief. The panel held that the Supreme Court’s decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), did not require the panel to vacate the injunction.

Judge Collins dissented. He agreed that at least the Sierra Club established Article III standing, but in his view the organizations lacked any cause of action to challenge the transfers. Even assuming that they had a cause of action Judge Collins would conclude that the transfers were lawful. Accordingly, he would reverse the district court’s partial summary judgment for the organizations and remand for an entry of partial summary judgment in favor of the defendants.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee66ooff8822

6

SIERRA CLUB V. TRUMP

COUNSEL

H. Thomas Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan and James M. Burnham, Deputy Assistant Attorneys General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina Shamsi, and Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Mollie M. Lee and Christine P. Sun, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; David Donatti and Andre I. Segura, American Civil Liberties Union Foundation of Texas, Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra Club Environmental Law Program, Oakland, California; for Plaintiffs-Appellees.

Douglas N. Letter (argued), Todd B. Tatelman, Megan Barbero, Josephine Morse, and Kristin A. Shapiro, United States House of Representatives, Washington, D.C.; Carter G. Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae United States House of Representatives.

James F. Zahradka II (argued), Brian J. Bilford, Sparsh S. Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M. Smith, Deputy Attorneys General; Michael P. Cayaban, Christine Chuang, and Edward H. Ochoa, Supervising Deputy Attorneys General; Robert W. Byrne, Sally Magnani, and Michael L. Newman, Senior Assistant Attorneys General;

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee77ooff8822

SIERRA CLUB V. TRUMP

7

Xavier Becerra, Attorney General; Attorney General’s Office, Oakland, California; Jennie Lusk, Civil Rights Bureau Chief; Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas, Chief Deputy Attorney General; Hector Balderas, Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Amici Curiae States of California and New Mexico.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C.; Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae United States Representative Andy Barr.

John W. Howard, George R. Wentz Jr., Richard Seamon, and D. Colton Boyles, Davillier Law Group LLC, Sandpoint, Idaho, for Amicus Curiae State of Arizona House of Representatives Federal Relations Committee.

Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri; Michael J. O’Neill and Matthew C. Forys, Landmark Legal Foundation, Leesburg, Virginia; for Amici Curiae Angel Families, Sabine Durden, Don Rosenberg, Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen Laquerre, Dennis Bixby, and Advocates for Victims of Illegal Alien Crimes.

Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amici Curiae Former Members of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Federal Courts Scholars.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee88ooff8822

8

SIERRA CLUB V. TRUMP

Steven A. Zalesin, Adeel A. Mangi, and Amir Badat, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Kathleen R. Hartnett, Boies Schiller Flexner LLP, San Francisco, California; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Former United States Government Officials.

Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney General, Tohono O’Odham Nation, Sells, Arizona; for Amicus Brief Tohono O’Odham Nation.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee99ooff8822

SIERRA CLUB V. TRUMP

9

OPINION

THOMAS, Chief Judge:

We consider in this appeal challenges by the Sierra Club and the Southern Border Communities Coalition (“SBCC”)1 to the Department of Defense’s budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona. Specifically, we consider whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) (“Section 8005”)2 authorized the budgetary transfers. In a companion appeal, State of California, et al. v. Trump et al., Nos. 19-16299 and 19-16336, we considered similar challenges filed by a collective group of States. However, because Sierra Club asserts different legal theories, and this case, when presented, was in a different procedural posture, we treat this appeal separately. We conclude that the transfers were not authorized, and that plaintiffs have a cause of action. We affirm the judgment of the district court.

1 We refer throughout this opinion to Sierra Club and SBCC together as “Sierra Club,” unless otherwise noted.
2 For simplicity, because the transfer authorities are both subject to Section 8005’s substantive requirements, this opinion refers to these authorities collectively as Section 8005, as did the district court and the motions panel. Our holding in this case therefore extends to both the transfer of funds pursuant to Section 8005 and Section 9002.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1100ooff8822

10

SIERRA CLUB V. TRUMP

I

We recounted the essential underlying facts in the companion case. However, we briefly outline them here for convenience of reference.

The President has long supported the construction of a border wall on the southern border between the United States and Mexico. Since the President took office in 2017, however, Congress has repeatedly declined to provide the amount of funding requested by the President.

The debate over border wall funding came to a head in December of 2018. During negotiations to pass an appropriations bill for the remainder of the fiscal year, the President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction. On January 6, 2019, the White House requested $5.7 billion to fund the construction of approximately 234 miles of new physical barrier.3 Budget negotiations concerning border wall funding reached an impasse, triggering the longest partial government shutdown in United States history.

After 35 days, the government shutdown ended without an agreement to provide increased border wall funding in the amount requested by the President. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 (“CAA”), which included the Department of Homeland Security Appropriations Act for Fiscal Year 2019, Pub. L.

3 Some form of a physical barrier already exists at the site of some of the construction projects. In those places, construction would reinforce or rebuild the existing portions.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1111ooff8822

SIERRA CLUB V. TRUMP

11

No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated only $1.375 billion for border wall construction, specifying that the funding was for “the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.” Id. § 230(a)(1). The President signed the CAA into law the following day.

The President concurrently issued a proclamation under the National Emergencies Act, 50 U.S.C. §§ 1601–1651, “declar[ing] that a national emergency exists at the southern border of the United States.” Proclamation No. 9,844, 84 Fed. Reg. 4949 (Feb. 15, 2019).4 An accompanying White House Fact Sheet explained that the President was “using his legal authority to take Executive action to secure additional resources” to build a border wall, and it specified that “the Administration [had] so far identified up to $8.1 billion that [would] be available to build the border wall once a national emergency [was] declared and additional funds [were] reprogrammed.” The Fact Sheet identified several funding sources, including $2.5 billion of Department of Defense (“DoD”) funds that could be transferred to provide support for counterdrug activities of other federal government agencies under 10 U.S.C. § 284 (“Section 284”).5 Executive

4 Subsequently, Congress adopted two joint resolutions terminating the President’s emergency declaration pursuant to its authority under 50 U.S.C. § 1622(a)(1). The President vetoed each resolution, and Congress failed to override these vetoes.
5 Section 284 authorizes the Secretary of Defense to “provide support for the counterdrug activities . . . of any other department or agency of the Federal Government” if it receives a request from “the official who has responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a), 284(a)(1)(A). The statute permits, among other things, support for “[c]onstruction of roads and fences and installation of lighting to block

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1122ooff8822

12

SIERRA CLUB V. TRUMP

Branch agencies began using the funds identified by the Fact Sheet to fund border wall construction. On February 25, the Department of Homeland Security (“DHS”) submitted to DoD a request for Section 284 assistance to block drug smuggling corridors. In particular, it requested that DoD fund “approximately 218 miles” of wall using this authority, comprised of numerous projects. On March 25, Acting Secretary of Defense Patrick Shanahan approved three border wall construction projects: Yuma Sector Projects 1 and 2 in Arizona and El Paso Sector Project 1 in New Mexico. On May 9, Shanahan approved four more border wall construction projects: El Centro Sector Project 1 in California and Tucson Sector Projects 1–3 in Arizona.

At the time Shanahan authorized Section 284 support for these border wall construction projects, the counter-narcotics support account contained only $238,306,000 in unobligated funds, or less than one tenth of the $2.5 billion needed to complete those projects. To provide the support requested, Shanahan invoked the budgetary transfer authority found in Section 8005 of the 2019 DoD Appropriations Act to transfer funds from other DoD appropriations accounts into the Section 284 Drug Interdiction and Counter-Drug ActivitiesDefense appropriations account.

For the first set of projects, Shanahan transferred $1 billion from Army personnel funds. For the second set of projects, Shanahan transferred $1.5 billion from “various excess appropriations,” which contained funds originally

drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7). DoD’s provision of support for other agencies pursuant to Section 284 does not require the declaration of a national emergency.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1133ooff8822

SIERRA CLUB V. TRUMP

13

appropriated for purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.

As authority for the transfers, DoD invoked Section 8005, which provides, in relevant part that:

Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.6

Section 8005 also explicitly limits when its authority can be invoked: “Provided, That such authority to transfer may

6 The other authority invoked by the Federal Defendants, Section 9002 provides that: “Upon the determination of the Secretary of Defense that such action is necessary in the national interest, the Secretary may, with the approval of the Office of Management and Budget, transfer up to $2,000,000,000 between the appropriations or funds made available to the Department of Defense in this title: Provided, That the Secretary shall notify the Congress promptly of each transfer made pursuant to the authority in this section: Provided further, That the authority provided in this section is in addition to any other transfer authority available to the Department of Defense and is subject to the same terms and conditions as the authority provided in section 8005 of this Act.”

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1144ooff8822

14

SIERRA CLUB V. TRUMP

not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”

Although Section 8005 does not require formal congressional approval of transfers, historically DoD had adhered to a “gentleman’s agreement,” by which it sought approval from the relevant congressional committees before transferring the funds. DoD deviated from this practice here—it did not request congressional approval before authorizing the transfer. Further, the House Committee on Armed Services and the House Committee on Appropriations both wrote letters to DoD formally disapproving of the reprogramming action after the fact. Moreover, with respect to the second transfer, Shanahan expressly directed that the transfer of funds was to occur “without regard to comitybased policies that require prior approval from congressional committees.”

In the end, Section 8005 was invoked to transfer $2.5 billion of DoD funds appropriated for other purposes to fund border wall construction.

II

On February 19, 2019, Sierra Club filed a lawsuit
challenging the Executive Branch’s funding of the border wall.7 Sierra Club pled theories of violation of the 2019

7 California, New Mexico, and fourteen other states had filed a lawsuit the previous day challenging the same border wall funding. Both lawsuits named as defendants Donald J. Trump, President of the United States, Patrick M. Shanahan, former Acting Secretary of Defense, Kirstjen

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1155ooff8822

SIERRA CLUB V. TRUMP

15

CAA, violation of the constitutional separation of powers, violation of the Appropriations Clause, violation of the Presentment Clause, violation of the National Environmental Policy Act (“NEPA”), and ultra vires action.

Sierra Club subsequently filed a motion requesting a preliminary injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona’s Yuma Sector and New Mexico’s El Paso Sector. The district court held that Sierra Club had standing to assert its Section 8005 claims, and granted the preliminary injunction motion. The Federal Defendants timely appealed the preliminary injunction order. Sierra Club subsequently sought a supplemental preliminary injunction to block additional construction planned in California’s El Centro Sector and Arizona’s Tucson Sector.

Sierra Club also filed a motion requesting partial summary judgment, a declaratory judgment, and a permanent injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona’s Yuma and Tucson Sectors, California’s El Centro Sector, and New Mexico’s El Paso Sector. The Federal Defendants crossmoved for summary judgment and opposed Sierra Club’s motion. The district court granted Sierra Club’s motion for partial summary judgment and granted its request for a declaratory judgment and a permanent injunction. The Federal Defendants requested that the district court certify the judgment for appeal under Fed. R. Civ. P. 54(b). The district

M. Nielsen, former Secretary of Homeland Security, and Steven Mnuchin, Acting Secretary of the Treasury in their official capacities, along with numerous other Executive Branch officials (collectively referenced as “the Federal Defendants”).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1166ooff8822

16

SIERRA CLUB V. TRUMP

court considered the appropriate factors, made appropriate findings, and certified the order as final pursuant to Rule 54(b). See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 574–75 (9th Cir. 2018) (explaining when certification is appropriate under Rule 54). The Federal Defendants timely appealed the district court decision.

The Federal Defendants initially filed a motion to stay the district court’s preliminary injunction, and in their later briefing on summary judgment, they requested that the district court stay any permanent injunction granted pending appeal. The district court denied both requests. The Federal Defendants filed an emergency motion for stay of the preliminary injunction pending appeal in this Court and subsequently sought a stay of the permanent injunction, relying on the same arguments. Sierra Club v. Trump, 929 F.3d 670, 685 (9th Cir. 2019). An emergency motions panel of this Court considered whether to stay the injunction pending appeal, and held that a stay was not warranted. Id. at 677. The Federal Defendants then filed an application for a stay pending appeal with the Supreme Court. The Supreme Court granted the application, noting that “[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.).

We now consider the merits of the Federal Defendants’ appeal of the district court’s grant of partial summary judgment, grant of a declaratory judgment, and grant of a

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1177ooff8822

SIERRA CLUB V. TRUMP

17

permanent injunction to Sierra Club.8 We review the existence of Article III standing de novo. See California v. U.S. Dep’t of Health & Human Servs., 941 F.3d 410, 420 (9th Cir. 2019). We review questions of statutory interpretation de novo. See United States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017).

III

Sierra Club has Article III standing to pursue its claims. To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).9 An organization has standing to sue on behalf of its members when “its members would otherwise have standing to sue in their own right,” and when “the interests it seeks to protect are germane to the organization’s purpose.” United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert.

8 We dismiss the Federal Defendants’ appeal of the district court’s grant of the preliminary injunction as moot. See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 963 (9th Cir. 2013) (“The district court’s entry of final judgment and a permanent injunction moots Arizona’s appeal of the preliminary injunction.”); see also Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 949–50 (9th Cir. 1983); SEC v. Mount Vernon Mem’l Park, 664 F.2d 1358, 1361–62 (9th Cir. 1982).
9 The Federal Defendants do not challenge Sierra Club’s Article III standing in these appeals. However, “the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1188ooff8822

18

SIERRA CLUB V. TRUMP

Comm’n, 434 U.S. 333, 343 (1977)).10 An organization has standing to sue on its own behalf when it suffers “both a diversion of its resources and a frustration of its mission.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (quoting Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). It must “show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. At summary judgment, a plaintiff cannot rest on mere allegations, but “must set forth by affidavit or other evidence specific facts.” Clapper v. Amnesty Int’l. USA, 568 U.S. 398, 412 (2013) (quotations and citation omitted). However, these specific facts “for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561.

Here, Sierra Club and SBCC have alleged facts that support their standing to sue on behalf of their members. Sierra Club has alleged that the actions of the Federal Defendants will cause particularized and concrete injuries to its members, and SBCC has shown that it has suffered a concrete injury itself.

Sierra Club has more than 400,000 members in California, over 9,700 of whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon Chapter, which covers

10 United Food and Commercial Workers held that those two requirements were based on constitutional demands, but held that the third prong of Hunt’s test for organizational standing, whether the claim or relief requested requires the participation of individual members in the lawsuit, was prudential only. Id. at 555. In any case, because the claim and relief requested here do not require the participation of Sierra Club or SBCC members, even this prudential consideration supports plaintiffs’ standing here.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee1199ooff8822

SIERRA CLUB V. TRUMP

19

the State of Arizona, has more than 16,000 members. Sierra Club’s Rio Grande Chapter includes over 10,000 members in New Mexico and West Texas. These members visit border areas such as the Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness Area (California), the Sonoran Desert (Arizona), Cabeza Prieta National Wildlife Refuge (Arizona), and the Chihuahan Desert (New Mexico).

Sierra Club’s thousands of members live near and frequently visit these areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities. They obtain recreational, professional, scientific, educational, and aesthetic benefits from their activities in these areas, and from the wildlife dependent upon the habitat in these areas. The construction of a border wall and related infrastructure will acutely injure these interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests.

Sierra Club has adequately set forth facts and other evidence by declaration, which taken as true, support these allegations for the purpose of Article III standing.

Sierra Club members Orson Bevins and Albert Del Val have alleged that they will be injured by construction of Yuma Project 1. Bevins avers that he visits the area several times per year and is concerned that the wall “would disrupt the desert views and inhibit [him] from fully appreciating [the] area,” and that the additional presence of U.S. Customs and Border Protection agents “would further diminish[] [his] enjoyment of these areas” and “deter[] [him] from further

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2200ooff8822

20

SIERRA CLUB V. TRUMP

exploring certain areas.” Del Val worries that “construction and maintenance of the border wall will limit or entirely cut off [his] access to [] fishing spots” along the border, where he has fished for more than 50 years.

Sierra Club member Elizabeth Walsh has alleged that construction of El Paso Sector Project 1 would injure her because “[a]s part of [her] professional and academic work [she] routinely visit[s] and stud[ies]” the area where the project would be built to “supervise several ongoing and long-term biology studies in this area with graduate students on the aquatic diversity of ephemeral wetlands known locally as playas.” Among other things, she is worried that border wall construction would “negatively impact the scientific playa studies . . . because a wall could impede vital natural drainage patterns for the playas.”

Sierra Club member Carmina Ramirez has alleged that she “will be harmed culturally and aesthetically” if El Centro Sector Project 1 is built because she has spent her entire life in the area surrounding the U.S.-Mexico Border, including the El Centro Sector, and she believes that border wall construction would “drastically impact [her] ability to enjoy the local natural environment,” because she would “see a high border wall instead of [the] beautiful landscape,” and “drastically impact [her] cultural identity by fragmenting [her] community.” Construction will make her “less likely to hike Mount Signal and enjoy outdoor recreational activities; and when [she does] undertake those activities, [her] enjoyment of them will be irreparably diminished.”

Sierra Club member Ralph Hudson “recreat[es] in the wilderness areas along the U.S.-Mexico border” in the area referred to as the Tucson Sector and has done so for 20 years.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2211ooff8822

SIERRA CLUB V. TRUMP

21

He uses the land “to hike, take photos, and explore the natural history.” He is “extremely concerned that Tucson Projects 1 and 2 will greatly detract from [his] ability to enjoy hiking, camping, and photographing these landscapes.”

Sierra Club member Margaret Case lives a few miles from the border, and she asserts that she will be injured by the construction of Tucson Sector Project 3. “With each increase and escalation in enforcement along the border, [her] and other border residents’ quality of life decreases” and “[t]he proposed wall will . . . extend an already unwanted eyesore in the middle of a landscape whose beauty [she] treasure[s], irrevocably harming [her] enjoyment of that landscape.”

Additionally, the interests of Sierra Club’s members in this lawsuit are germane to the organization’s purpose. Sierra Club is a national organization “dedicated to exploring, enjoying, and protecting the wild places of the earth; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives.” Sierra Club’s organizational purpose is at the heart of this lawsuit, and it easily satisfies this secondary requirement.

SBCC has also alleged facts that support that it has standing to sue on behalf of itself and its member organizations. SBCC alleged that since the Federal Defendants proposed border wall construction, it has had to “mobilize[] its staff and its affiliates to monitor and respond to the diversion of funds and the construction caused by and accompanying the national emergency declaration.” These “activities have consumed the majority of SBCC staff’s time, thereby interfering with SBCC’s core advocacy regarding border militarization, Border Patrol law-enforcement

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2222ooff8822

22

SIERRA CLUB V. TRUMP

activities, and immigration reform,” but it has had no choice because it “must take these actions in furtherance of its mission to protect and improve the quality of life in border communities.”

SBCC Director Vicki Gaubeca confirms these allegations. She has stated that a “border wall, as a physical structure and symbol, is contrary to the goals of SBCC and the needs of border communities.” She avers that the “emergency declaration and the threat and reality of construction have caused [SBCC] to reduce the time [it] spend[s] on [its] core projects, including public education about border policies, community engagement on local issues, and affirmative advocacy for Border Patrol accountability and immigration reform.” SBCC and its member organizations have instead “been forced to devote substantial time to analyze and respond to the declaration and the promise to build border walls across the southern border” “at a substantial monetary and opportunity cost.”

These allegations are sufficient to establish that, if funds are transferred to the border wall construction projects, Sierra Club members and SBCC will each suffer injuries in fact.

Sierra Club and SBCC have also shown that such injuries are “fairly traceable to the challenged action of the [Federal Defendants], and [are] not the result of the independent action of some third party not before the court.” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). It makes no difference that the border wall construction is the product of other statutory provisions, such as Section 284, in addition to Section 8005. “Causation may be found even if there are multiple links in the chain connecting the defendant’s unlawful conduct to the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2233ooff8822

SIERRA CLUB V. TRUMP

23

plaintiff’s injury, and there’s no requirement that the defendant’s conduct comprise the last link in the chain.” Id. The Federal Defendants could not build the border wall projects challenged by Sierra Club without invoking Section 8005’s transfer authority—without this authority, there was no money to build these portions of the border wall; therefore, construction is fairly traceable to the Section 8005 transfers.

The injury to Sierra Club members and SBCC is likely to be redressed by a favorable judicial decision. A judicial order prohibiting the Federal Defendants from spending the money transferred pursuant to Section 8005 would stop construction, thereby preventing the harm alleged by Plaintiffs. Thus, Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants’ actions.

IV

First, we consider whether Section 8005 or any constitutional provision authorized DoD to transfer the funds at issue. We hold they did not.

A

Section 8005 provides DoD with limited authority to transfer funds between different appropriations accounts, but it provides no such authority “unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” In the opinion filed today in the companion case, State of California, et al. v. Trump, et al., Nos. 19-16299 and

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2244ooff8822

24

SIERRA CLUB V. TRUMP

19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), we hold that Section 8005 did not authorize the transfer of funds at issue here because “the border wall was not an unforeseen military requirement,” and “funding for the wall had been denied by Congress.” We reaffirm this holding here and conclude that Section 8005 did not authorize the transfer of funds.

B

The “straightforward and explicit command” of the Appropriations Clause11 “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (quotation and citation omitted). The Clause is “a bulwark of the Constitution’s separation of powers.” U.S. Dep’t. Of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012); see also United States v. McIntosh, 833 F.3d 1163, 1174–75 (9th Cir. 2016). It “assure[s] that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents.” Office of Pers. Mgmt., 496 U.S. at 427–28. Without it, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.” Id. at 427 (quoting Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)).

Accordingly, “[t]he United States Constitution exclusively grants the power of the purse to Congress, not the

11 “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art. I, § 9, cl. 7.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2255ooff8822

SIERRA CLUB V. TRUMP

25

President.” City and Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018) (citing U.S. Const. art. I, § 9, cl. 7). “[W]hen it comes to spending, the President has none of ‘his own constitutional powers’ to ‘rely’ upon.” Id. at 1233–34 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).

Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. These funds were appropriated for other purposes, and the transfer amounted to “drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” McIntosh, 833 F.3d at 1175.

Therefore, the transfer of funds here was unlawful.

V

All that is left for us to decide, then, is whether Sierra Club is a proper party to challenge the Section 8005 transfers. Sierra Club asserts that it has a number of viable causes of action—including a constitutional cause of action and an ultra vires cause of action—while the Federal Defendants assert that Sierra Club has none.

The Supreme Court stay order suggests that Sierra Club may not be a proper challenger here. See Sierra Club, 140 S. Ct. at 1. We heed the words of the Court, and carefully analyze Sierra Club’s arguments. Having done so, we conclude that Sierra Club has both a constitutional and an ultra vires cause of action.

In reaching this result, we realize that this is a rare case in which the “judiciary may . . . have to intervene in determining

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2266ooff8822

26

SIERRA CLUB V. TRUMP

where the authority lies as between the democratic forces in our scheme of government.” Youngstown, 343 U.S. at 597 (1952) (Frankfurter, J. concurring). In doing so, we remain “wary and humble,” id., for “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” id. at 614. But where, as here, “Congress could not more clearly and emphatically have withheld [the] authority,” id. at 602, exercised by DoD, “with full consciousness of what it was doing and in the light of much recent history,” id., and Sierra Club satisfies the rigors of Article III standing, our “obligation to hear and decide [this] case is virtually unflagging,” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quotations and citation omitted). “All we can do is, to exercise our best judgment, and conscientiously to perform our duty.” Cohens v. State of Virginia, 19 U.S. 264, 404 (1821).

A

First, we consider whether Sierra Club has a constitutional cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Certain provisions of the Constitution give rise to equitable causes of action. Such causes of action are most plainly available with respect to provisions conferring individual rights, such as the Establishment Clause or the Free Exercise Clause. See Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018); Flast v. Cohen, 392 U.S. 83 (1968). But certain structural provisions give rise to causes of action as well. See Nat. Labor Relations. Bd. v. Noel Canning, 573 U.S. 513, 556–57 (2014) (cause of action based on the Recess Appointments Clause); Bond v. United States, 564 U.S. 211, 225–26 (2011) (cause of action based on structural principles

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2277ooff8822

SIERRA CLUB V. TRUMP

27

of federalism); Clinton v. City of New York, 524 U.S. 417, 434–36 (1998) (cause of action based on the Presentment Clause); INS v. Chadha, 462 U.S. 919, 943–44 (1983) (cause of action based on the constitutional requirement of bicameralism and presentment); McIntosh, 833 F.3d at 1174–75 (cause of action based on the Appropriations Clause).

In Bond, the Supreme Court articulated why certain structural constitutional provisions give rise to causes of action. The Court considered “whether a person indicted for violating a federal statute has standing to challenge its validity on the grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.” 564 U.S. at 214. The Court held that “[j]ust as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism.” Id. at 223–24. It reasoned that the challenge was permissible because “structural principles secured by the separation of powers protect the individual as well,” and “[a]n individual has a direct interest in objecting to laws that upset the constitutional balance . . . when the enforcement of those laws causes injury that is concrete, particular, and redressable.” Id. at 222. In other words, an individual who otherwise meets the requirements of Article III standing may challenge government action that violates structural constitutional provisions intended to protect individual liberties.

We have held that the Appropriations Clause contains such a cause of action. See McIntosh, 833 F.3d at 1173–74. In McIntosh, defendants moved to enjoin their prosecutions

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2288ooff8822

28

SIERRA CLUB V. TRUMP

for federal marijuana offenses on the grounds that a congressional appropriations rider prohibited the Department of Justice from spending federal funds on such prosecutions. Id. at 1168. We held that “[the Appropriations Clause] constitutes a separation-of-powers limitation that Appellants can invoke to challenge their prosecutions.” Id. at 1175. The opinion reasoned that so long as a litigant satisfies the Article III standing requirements, he or she can challenge Appropriations Clause violations because “[o]nce Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for . . . the courts to enforce them when enforcement is sought.” Id. at 1172 (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)). In McIntosh, we also reaffirmed the Supreme Court’s statement in Bond that “both federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints ‘[w]hen government acts in excess of its lawful powers.’” Id. at 1174 (quoting Bond, 564 U.S. at 222).12

The cause of action available to the plaintiffs in McIntosh is available to Sierra Club here. Congress decided the order of priorities for border security. In doing so, it chose to allocate $1.375 billion to fund the construction of pedestrian

12 The Federal Defendants incorrectly characterize McIntosh’s constitutional holding as dicta. The McIntosh Court discussed the availability of a constitutional cause of action, analogizing to Bond and Canning, and stating that “Appellants have standing to invoke separationof-powers provisions of the Constitution to challenge their criminal convictions.” 833 F.3d at 1174. Because the Court “confront[ed] an issue germane to the eventual resolution of the case,” and “resolve[d] it after reasoned consideration in a published opinion,” McIntosh’s constitutional holding is “the law of the circuit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quotations and citation omitted).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee2299ooff8822

SIERRA CLUB V. TRUMP

29

fencing in Texas. See 2019 CAA § 230(a)(1). It declined to provide additional funding for projects in other areas, and it declined to provide the full $5.7 billion sought by the President: it is for the courts to enforce Congress’s priorities, and we do so here. Where plaintiffs, like Sierra Club, establish that they satisfy the requirements of Article III standing, they may invoke separation-of-powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority.

The Federal Defendants argue that Dalton v. Specter, 511 U.S. 462 (1994) forecloses this result. They assert that Dalton’s proposition that not “every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution,” means that when there is a claim that an Executive Branch official acted in excess of his statutory authority, there is no constitutional violation. Id. at 472. But Dalton does not hold that every action in excess of statutory authority is not a constitutional violation.13 Rather, Dalton suggests that some

13 Notably, the plaintiffs in Dalton never alleged that the President violated the Constitution and sought review “exclusively under the [Administrative Procedure Act (“APA”)].” Id. at 471. Only the Court of Appeals “sought to determine whether non-APA review, based on either common law or constitutional principles, was available.” Id. The Supreme Court did not consider whether the President had violated a specific constitutional prohibition; instead, it took issue only with the Court of Appeals’ contention that “whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-ofpowers doctrine.” Id. The Supreme Court’s objection to this conclusion is unsurprising in the context of the Defense Base Closure and Realignment Act of 1990 at issue in Dalton. The Constitution divides authority with respect to the military between Congress and the President. Here, in contrast, the Constitution delegates exclusively to Congress the power of the purse.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3300ooff8822

30

SIERRA CLUB V. TRUMP

actions in excess of statutory authority may be constitutional violations, while others may not. Specifically, Dalton suggests that a constitutional violation may occur when an officer violates an express prohibition of the Constitution. Id. (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396–97 (1971) for the distinction between “actions contrary to [a] constitutional prohibition,” and those “merely said to be in excess of the authority delegated . . . by the Congress”). The Appropriations Clause contains such a constitutional prohibition, declaring that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const. art.1, § 9, cl. 7. Under Dalton, then, violations of the Appropriations Clause may give rise to viable causes of action.

Dalton’s discussion of Youngstown only underscores this point. The Court determined that Youngstown could not stand for the proposition “that an action taken by the President in excess of his statutory authority necessarily violates the Constitution” because in Youngstown “no statutory authority was claimed.” Dalton, 511 U.S. at 473 (emphasis added). The Court concluded only that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.” Id. Thus, Dalton and its discussion of Youngstown do not address situations in which the President exceeds his or her statutory authority, and in doing so, also violates a specific constitutional prohibition, as is the case here.

Neither does Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), require an opposite result here. In Armstrong, the Supreme Court rejected the argument that the Supremacy Clause created a private right of action. Id. at 325–27. But the Supremacy Clause is not the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3311ooff8822

SIERRA CLUB V. TRUMP

31

Appropriations Clause: while the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government,” id. at 325 (citing The Federalist No. 33, p. 207 (J. Cooke ed. 1961)), the Appropriations Clause contains an explicit prohibition, which protects individual liberty, because “[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury,” McIntosh, 833 F.3d at 1175. “The individual loses liberty in a real sense if [the appropriations power] is not subject to traditional constitutional constraints.” Clinton v. City of New York, 524 U.S. at 451 (Kennedy, J., concurring). Thus, while it might be “strange” “to give a clause that makes federal law supreme a reading that limits Congress’s power to enforce that law,” Armstrong, 575 U.S. at 326, it is entirely sensible to give a clause that restricts the power of the federal government as a whole a reading that safeguards individual liberty.

Therefore, because the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, we hold that Sierra Club has a constitutional cause of action here.

B

Second, we consider whether Sierra Club has an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer. We hold that it does.

Whether Sierra Club can assert an equitable ultra vires cause of action turns on “whether the relief [it] request[s] . . .

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3322ooff8822

32

SIERRA CLUB V. TRUMP

was traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999). Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a “judge-made remedy” for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review. Armstrong, 575 U.S. at 327. “The substantive prerequisites for obtaining an equitable remedy . . . depend on traditional principles of equity jurisdiction.” Grupo Mexicano, 527 U.S. at 318–19 (quotations and citation omitted).

The relief Sierra Club requests has been traditionally available. “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong, 575 U.S. at 327 (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)); see also Harmon v. Brucker, 355 U.S. 579, 581–82 (1958) (“Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers.”). Such causes of action have been traditionally available in American courts: “[w]hen Congress limits its delegation of power, courts infer (unless the statute clearly directs otherwise) that Congress expects this limitation to be judicially enforced.” Dart v. United States, 848 F.2d 217, 223 (D.C. Cir. 1988).

The passage of the APA has not altered this presumption. “Prior to the APA’s enactment . . . courts had recognized the right of judicial review of agency actions that exceeded

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3333ooff8822

SIERRA CLUB V. TRUMP

33

authority,” and “[n]othing in the subsequent enactment of the APA altered [that] doctrine of review,” to “repeal the review of ultra vires actions.” Id. at 224. “When an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Id.

That Sierra Club has a cause of action to enjoin the unconstitutional actions at issue here is best illustrated by Youngstown. There, Congress passed numerous statutes authorizing the President to take personal and real property under specific conditions. 343 U.S. at 585–86. During the Korean War, however, President Truman signed an executive order seizing most of the nation’s steel mills, even though the conditions of the statutes had not been satisfied as a matter of fact. Id. at 582, 586. It fell to the Supreme Court to determine whether the President had constitutional authority to seize the steel mills—it held he did not and affirmed the district court injunction. Id. at 588–589. The Court never questioned that it had the authority to provide the requested relief.

Such is the case here. Section 8005 authorizes DoD to transfer funds under certain conditions; however, as explained previously, DoD failed to satisfy those conditions. Likewise, as explained previously, the Executive Branch lacks independent constitutional authority to fund border wall construction. If an equitable ultra vires action was available to the plaintiffs in Youngstown, it surely must be available to Sierra Club here.

A number of D.C. Circuit cases reaffirm that review is ordinarily available when an agency exceeds its delegation of authority. In Chamber of Commerce of the United States v. Reich, the D.C. Circuit considered whether the Chamber of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3344ooff8822

34

SIERRA CLUB V. TRUMP

Commerce had a cause of action to challenge an executive order barring the federal government from contracting with employers who hire permanent replacements during a lawful strike. 74 F.3d 1322, 1325–26 (D.C. Cir. 1996). The government argued that the Chamber of Commerce lacked a statutory cause of action and that APA review was not available because the challenge was directed at the President’s statutory authority to issue the executive order, and the President is not an agency within the meaning of the APA. See id. The court agreed that APA review was not available, but it held that non-statutory review remained available. See id. at 1327. The court held that “[i]f a plaintiff is unable to bring his case predicated on either a specific or a general statutory review provision, he may still be able to institute a non-statutory review action.” Id. The court reasoned in part that “[t]he responsibility of determining the limits of statutory grants of authority . . . is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.” Id. (quoting Stark v. Wickard, 321 U.S. 288, 310 (1944)).

Likewise, in Dart v. United States, the D.C. Circuit considered whether the plaintiff could challenge the Secretary of Commerce’s decision to impose civil sanctions for a violation of the Export Administration Act (“EAA”). See 848 F.2d at 219. The court held that even though the EAA expressly limited judicial review, the court retained the ability to review whether the Secretary exceeded the authority delegated by the statute. See id. at 223–34. It explained that “the presumption of judicial review is particularly strong where an agency is alleged to have acted beyond its authority.” Id. at 223. It ultimately concluded that the Secretary had done just that and invalidated the sanctions he imposed.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3355ooff8822

SIERRA CLUB V. TRUMP

35

These cases support our holding here that Sierra Club has an equitable ultra vires cause of action to challenge DoD’s transfer of funds. Where it is alleged that DoD has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.

The Federal Defendants contend that an equitable cause of action is not available to Sierra Club here because equitable remedies are available only when they have been “traditionally available in the specific circumstances presented,” and that the remedies sought here have not been traditionally available in the specific circumstances presented by this case.

The Federal Defendants cite Grupo Mexicano in support of this argument, but that case provides little support for their position. In Grupo Mexicano, the Court considered whether a district court had the power to issue a preliminary injunction to prevent the transfer of assets in which no lien or equitable interest was claimed. See 527 U.S. at 318. The Court concluded it did not. See id. at 333. It held that a district court cannot grant relief that “has never been available before—and especially (as here) a type of relief that has been specifically disclaimed by longstanding judicial precedent,” particularly when “there is absolutely nothing new about debtors’ trying to avoid paying their debts, or seeking to favor some creditors over others.” Id. at 322; see id. at 333.

Here, however, the plaintiffs request a type of relief that is consistent with our longstanding precedent. Indeed, as explained above, the Supreme Court has actually granted injunctive relief in circumstances very similar to these. See, e.g., Youngstown, 343 U.S. at 589. Further, unlike attempts

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3366ooff8822

36

SIERRA CLUB V. TRUMP

to avoid paying debts, instances of Executive Branch ultra vires action are, fortunately, relatively rare, and unlikely to occur in contexts likely to repeat themselves precisely. Thus, the justifications for limiting equitable relief in Grupo Mexicano are not present here, and courts are able to grant the relief sought by Sierra Club.

We therefore hold that Sierra Club may assert an equitable ultra vires cause of action to challenge DoD’s transfer of funds.

C

The Federal Defendants raise a number of additional arguments. We address them here.

First, the Federal Defendants assert that Sierra Club’s challenge must be construed as an APA claim, rather than as a constitutional or ultra vires cause of action. But neither of the two cases cited by the Federal Defendants compel this conclusion. The Federal Defendants cite Hoefler v. Babbitt, 139 F.3d 726, 728 (9th Cir. 1998) for the proposition that “[t]he APA is the sole means for challenging the legality of federal agency action,” but there, we did not consider whether plaintiffs had a constitutional or ultra vires cause of action; rather, we considered whether the action was properly considered under the APA or the Quiet Title Act. See id. at 728–29. We ultimately held that the former was appropriate. See id. at 729. To extrapolate from a general statement made in this context, as the Federal Defendants do here, goes too far.

Likewise, in Bennett v. Spear, 520 U.S. 154, 175 (1997), the Court did not consider whether plaintiffs had a

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3377ooff8822

SIERRA CLUB V. TRUMP

37

constitutional cause of action; rather, the Court considered whether the citizen-suit provision of the Endangered Species Act (“ESA”) provided an exclusive statutory remedy, or whether a cause of action was also available under the APA. The Court ultimately determined that “[n]othing in the ESA’s citizen-suit provision expressly precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to do so.” Id. If anything, this case underscores that the APA is not to be construed as an exclusive remedy. Thus, the APA does not displace all constitutional and equitable causes of action.

Second, the Federal Defendants assert that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. We reject this argument.

The zone of interests test limits which plaintiffs can invoke statutorily created causes of action. Although earlier cases, such as Association of Data Processing Services Organizations, Inc. v. Camp, 397 U.S. 150 (1970), suggested that the test applied to constitutional causes of action, the Supreme Court’s most recent zone of interests case, Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), clarifies that the test applies only to statutory causes of action and causes of action under the APA. See id. at 129 (“[T]he modern ‘zone of interests’ formulation originated . . . as a limitation on the cause of action for judicial review conferred by the [APA],” but “[w]e have since made clear, however, that it applies to all statutorily created causes of action.” (emphasis added)).

Common sense supports this approach. As Judge Bork explained in Haitian Refugee Center v. Gracey,

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3388ooff8822

38

SIERRA CLUB V. TRUMP

Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest. For example, were a case like Youngstown, to arise today, the steel mill owners would not be required to show that their interests fell within the zone of interests of the President’s war powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of those powers.

809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (emphasis added). We agree with Judge Bork.14 It would make little sense to

14 While the dissent asserts that we rely on the wrong portion of Judge Bork’s opinion, we disagree. Section 8005 cannot merely be read as a statutory provision limiting the authority conferred when it is simultaneously a statutory power invoked by the President. In any case, as explained below, the relevant limitation here is not the inapplicable statutory power invoked by the Executive—Section 8005—but instead the restriction on unlawful action—the Appropriations Clause. See also Ctr. for Biodiversity v. Trump, No. 1:19-cv-00408, 2020 WL 1643657 at *25 (D.D.C. Apr. 2, 2020) (quoting the same language from Haitian Refugee Center and holding that plaintiffs “thus need not satisfy the zone of interests test for their ultra vires claims.”).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee3399ooff8822

SIERRA CLUB V. TRUMP

39

require Sierra Club to demonstrate that it falls within the zone of interests of Section 8005. Congress may not have contemplated the environmental advocacy group when it included Section 8005 in the defense budget, but nevertheless, Sierra Club has asserted a legally cognizable injury. The fact Congress did not have Sierra Club as a particular plaintiff in mind when it authorized Section 8005’s transfer authority does not make its injury less real, nor DoD’s action more lawful.

If the zone of interests test applies at all, the Appropriations Clause of the Constitution defines the zone of interests because it is the “particular provision of law upon which [Sierra Club] relies” in seeking relief. Bennett, 520 U.S. at 175–76. Section 8005 is relevant only because, to the extent it applies, it authorizes executive action that otherwise would be unconstitutional or ultra vires. That a statute is relevant does not transform a constitutional claim into a statutory one. Sierra Club’s cause of action stems from the Federal Defendants’ violation of the Appropriations Clause because it seeks to enforce the limits mandated by the clause.

To the extent the zone of interests test ever applies to constitutional causes of action, it asks only whether a plaintiff is “arguably within the zone of interests to be protected . . . by the . . . constitutional guarantee in question.” Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977) (quoting Data Processing, 397 U.S. at 153). This renders the test nearly superfluous: so long as a litigant is asserting an injury in fact to his or her constitutional rights, he has a cause of action. See ERWIN CHEMERINKSY, FEDERAL JURISDICTION 112 (7th ed. 2016) (citing LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 446 (3d ed. 2000)).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4400ooff8822

40

SIERRA CLUB V. TRUMP

Applying that generous formulation of the test here, Sierra Club falls within the Appropriations Clause’s zone of interests. Here, Sierra Club is an organization within the United States that is protected by the Constitution. The Appropriations Clause is a “bulwark of the Constitution’s separation of powers,” U.S. Dep’t. of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012), and the “separation of powers can serve to safeguard individual liberty,” McIntosh, 833 F.3d at 1174 (quoting Noel Canning, 573 U.S. at 525). The unconstitutional transfer of funds here infringed upon Sierra Club’s members’ liberty interests, harming their environmental, aesthetic, and recreational interests. Thus, Sierra Club falls within the Clause’s zone of interests, and Sierra Club has a cause of action to challenge the transfers.

VI

Finally, we consider whether the district court abused its discretion in granting Sierra Club a permanent injunction enjoining the Federal Defendants from spending the funds at issue. We hold it did not, and we affirm the district court injunction.

A permanent injunction is appropriate when: (1) a plaintiff will suffer an irreparable injury absent injunction, (2) remedies available at law are inadequate,15 (3) the balance of hardships between the parties supports an equitable remedy, and (4) the public interest would not be disserved. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). When the government is a party to the case, the court should consider the balance of hardships and public interests factors

15 The parties do not contest this factor and so we do not address it.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4411ooff8822

SIERRA CLUB V. TRUMP

41

together. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Although injunctive relief “does not follow from success on the merits as a matter of course,” Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008), we review a district court’s decision to grant a permanent injunction for abuse of discretion, see eBay, 547 U.S. at 391.

The district court did not abuse its discretion in weighing these factors and determining that injunctive relief was warranted. First, we agree with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. An organization can demonstrate irreparable harm by showing that the challenged action will injure its members’ enjoyment of public lands. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (finding irreparable harm when the Forest Service’s proposed project would harm the Alliance’s members’ ability to “view, experience, and utilize” national forest areas in an undisturbed state). We conclude that Sierra Club sufficiently demonstrated that the Federal Defendants’ proposed use of funds would harm its members ability to recreate and enjoy public lands along the border such that it will suffer irreparable harm absent injunction.

The Federal Defendants’ arguments to the contrary are unpersuasive. The Federal Defendants submit that Sierra Club will not be irreparably harmed because its members have plenty of other space to enjoy. We have already rejected the essence of the Federal Defendants’ argument. See All. for the Wild Rockies, 632 F.3d at 1135 (concluding that the Forest Service’s argument that plaintiffs can “view, experience, and utilize other areas of the forest” “proves too much,” because its logical extension is that a “plaintiff can never suffer irreparable injury resulting from environmental

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4422ooff8822

42

SIERRA CLUB V. TRUMP

harm in a forest as long as there are other areas of the forest that are not harmed” (internal citations omitted)).

Moreover, we agree with the district court that the balance of equities and the public interest favor injunctive relief here. The public has an important interest in “ensuring that statutes enacted by their representatives are not imperiled by executive fiat.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quotations and citation omitted). By passing the CAA, Congress made a calculated choice to fund only one segment of border barrier. The public interest favors enforcing this decision. In contrast, the Federal Defendants cannot suffer harm “from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (citing Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“[T]he INS cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations.”)). We agree with the district court that the Federal Defendants’ position essentially “boils down to an argument that the Court should not enjoin conduct found to be unlawful because the ends justify the means.” No matter how great the collateral benefits of building a border wall may be, the transfer of funds for construction remains unlawful. The equitable maxim “he who comes in equity must come with clean hands” would be turned on its head if unlawful conduct by one party precluded a court from granting equitable relief to the opposing party. The district court properly concluded that the balance of equities and the public interest favor injunctive relief.

The Federal Defendants’ additional arguments do not compel a different result. First, the Supreme Court’s decision in Winter does not require us to vacate the injunction. In

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4433ooff8822

SIERRA CLUB V. TRUMP

43

Winter, the Supreme Court reversed a preliminary injunction enjoining the Navy from using a particular type of sonar that was essential to its training exercises because it violated NEPA and a number of federal environmental laws. 555 U.S. at 16–17. Key distinctions between this case and Winter render it inapposite. There, plaintiffs’ “ultimate legal claim [was] that the Navy must prepare an [environmental impact statement], not that it must cease sonar training” because the use of the sonar had otherwise been sanctioned by law. Id. at 32. Having determined that the “continuation of the exercises . . . was ‘essential to national security,’” id. at 18, the President had used his statutory authority to “exempt from compliance those elements of the Federal agency activity that [were] found by the Federal court to be inconsistent with an approved State program,” 16 U.S.C. § 1456(c)(1)(B). In addition, the Council on Environmental Quality (“CEQ”) had authorized the Navy to implement alternative arrangements to NEPA compliance that would allow the Navy to conduct its training exercises under mitigation procedures, but it imposed additional notice, research, and reporting requirements. Winter, 555 U.S. at 18–19.

By contrast, here, Sierra Club’s ultimate legal claim is that DoD cannot legally use Section 8005 to fund construction of the border wall, and moreover, that no such exemption applies. If anything, Section 8005 itself is a defense against the Executive Branch’s unconstitutional transfer of funds; however, as discussed previously, it offers no such legal cover here. Therefore, while the use of the sonar was not unlawful at the time the Supreme Court vacated the injunction in Winter, DoD’s transfer of funds here is. While the injunction here “merely ends an unlawful practice,” Rodriguez, 715 F.3d at 1145, the injunction in Winter

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4444ooff8822

44

SIERRA CLUB V. TRUMP

enjoined conduct that had been sanctioned by law, see Winter, 555 U.S. at 32.

Moreover, the public interest at issue in Winter more clearly favored vacating the injunction. “Antisubmarine warfare [was] [] the Pacific Fleet’s top war-fighting priority.” Winter, 555 U.S. at 12. Accordingly, the use of MFA sonar during training missions was deemed “mission-critical,” id. at 14, because it is not only the “most effective technology,” id. at 13, but “the only proven method of identifying submerged diesel-electric submarines operating on battery power,” id. at 14. On the other side of the equation, “the most serious possible injury [to plaintiffs] would be harm to an unknown number of marine mammals.” Id. at 26. The Court reasonably concluded that the “balance of equities and consideration of the overall public interest . . . tip strongly in favor of the Navy.” Id.

The balance of interests does not so starkly favor the Federal Defendants here. Although they allege that the injunction “frustrates the government’s ability to stop the flow of drugs across the border,” unlike the government in Winter, the Federal Defendants have failed to demonstrate that construction of the border wall would serve this purpose, or alternatively, that an injunction would inhibit this purpose. The Federal Defendants cite drug trafficking statistics, but fail to address how the construction of additional physical barriers would further the interdiction of drugs. The Executive Branch’s failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4455ooff8822

SIERRA CLUB V. TRUMP

45

data points to a contrary conclusion.16 The district court properly accorded this interest little weight.17 Therefore, we hold that the district court did not abuse its discretion, and we affirm the grant of the permanent injunction.

VII

In sum, we affirm the district court. We conclude that Sierra Club and SBCC have Article III standing to file their

16 According to the U.S. Department of Justice’s Drug Enforcement Administration’s 2018 National Drug Threat Assessment Report, the “most common method employed by [Mexican Transnational Criminal Organizations] involves transporting illicit drugs through U.S. [ports of entry] in passenger vehicles with concealed compartments or commingled with legitimate goods on tractor trailers.” 2018 National Drug Threat Assessment, U.S. Dep’t of Just. Drug Enforcement Admin. at 99 (2018). Opioids like heroin and fentanyl are most commonly smuggled across the southwest border into the U.S. through legal ports of entry. Id. at 19–20, 33; see also Joe Ward & Anjali Singhvi, Trump Claims There is a Crisis at the Border. What’s the Reality?, NEW YORK TIMES (Jan. 11, 2019) (analyzing U.S. Customs and Border Patrol data and finding that “[m]ost drugs are seized at ports of entry, not along the open border”).
17 We are likewise unconvinced by Defendants argument, citing Maryland v. King, 567 U.S. 1301 (2012), that “there is ‘irreparable harm’ whenever a government cannot enforce its own laws.” The Ninth Circuit has recognized that there is “some authority” for the idea that “a state may suffer an abstract form of harm whenever one of its acts is enjoined,” but, “to the extent that is true . . . it is not dispositive of the balance of harms analysis.” Latta v. Otter, 771 F.3d 496, 500 (9th Cir. 2014) (quoting Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009), vacated and remanded on other grounds, 132 S. Ct. 1204 (2012) (alterations adopted)); see also id. at 500 n.1 (noting that “[i]ndividual justices, in orders issued from chambers, have expressed the view that a state suffers irreparable injury when one of its laws is enjoined, [but] [n]o opinion for the Court adopts this view” (citations omitted)).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4466ooff8822

46

SIERRA CLUB V. TRUMP

claims, that the Federal Defendants violated Section 8005 in transferring DoD appropriations to fund the El Paso, Yuma, El Centro, and Tucson Sectors of the proposed border wall, and that Sierra Club and SBCC have a constitutional cause of action under the Appropriations Clause and an ultra vires cause of action to challenge the Section 8005 transfers. We also decline to reverse the district court’s decision to impose a permanent injunction. Given our resolution of this case founded upon the violations of Section 8005, we need not—and do not—reach the merits of any other theory asserted by Sierra Club, nor reach any other issues presented by the parties.

AFFIRMED.

COLLINS, Circuit Judge, dissenting:
This case involves similar claims to those presented in California v. Trump, Nos. 19-16299 & 19-16336, ___ F.3d ___ (9th Cir. 2020). In each case, a distinct group of plaintiffs brought suit challenging the Acting Secretary of Defense’s invocation of § 8005 and § 9002 of the Department of Defense Appropriations Act, 2019 (“DoD Appropriations Act”), Pub. L. No. 115-245, Div. A, 132 Stat. 2981, 2999, 3042 (2018), to transfer $2.5 billion in funds that Congress had appropriated for other purposes into a different Department of Defense (“DoD”) appropriation that could then be used by DoD for construction of border fencing and accompanying roads and lighting. In California v. Trump, the relevant plaintiffs are the States of California and New Mexico, who challenged two such construction projects, and here the plaintiffs are the Sierra Club and the Southern Border

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4477ooff8822

SIERRA CLUB V. TRUMP

47

Communities Coalition (“SBCC”) (collectively, the “Organizations”), who challenge six projects. The district court granted declaratory relief to both sets of plaintiffs invalidating the transfers, but it granted permanent injunctive relief only to the Organizations. The majority concludes that the Organizations have Article III standing; that they have a cause of action to challenge the transfers under the Appropriations Clause of the Constitution as well as a cause of action under an equitable ultra vires theory; that the transfers were unlawful; and that the district court properly determined that the Organizations are entitled to declaratory and injunctive relief. I agree that at least the Sierra Club has established Article III standing, but in my view the Organizations lack any cause of action to challenge the transfers. And even assuming that they had a cause of action, I conclude that the transfers were lawful. Accordingly, I would reverse the district court’s partial judgment for the Organizations and remand for entry of partial summary judgment in favor of the Defendants. I respectfully dissent.1

1 There is considerable overlap between the substantive issues presented in this case and in California v. Trump, and my disagreements with the majority in this case largely parallel my disagreements in the other case. But rather than simply cross-reference all of the discussion in my dissent in California v. Trump, I will follow the majority and will rely on cross-reference only when it does. The result is a fair amount of verbatim repetition between this dissent and my dissent in California v. Trump, but proceeding in this way avoids the awkwardness of directing the reader to a separate published opinion when that reader wants to see what my response is to a particular point made by the majority in its opinion in this case.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4488ooff8822

48

SIERRA CLUB V. TRUMP

I

The parties’ dispute over DoD’s funding transfers comes to us against the backdrop of a complex statutory framework and an equally complicated procedural history. Before turning to the merits, I will briefly review both that framework and that history.

A

Upon request from another federal department, the Secretary of Defense is authorized to “provide support for the counterdrug activities” of that department by undertaking the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7). On February 25, 2019, the Department of Homeland Security (“DHS”) made a formal request to DoD for such assistance. Noting that its counterdrug activities included the construction of border infrastructure, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 102(a), 110 Stat. 3009-546, 3009-554 (1996) (codified as amended as a note to 8 U.S.C. § 1103), DHS requested that “DoD, pursuant to its authority under 10 U.S.C. § 284(b)(7), assist with the construction of fences[,] roads, and lighting” in several specified “Project Areas” in order “to block drugsmuggling corridors across the international boundary between the United States and Mexico.”

On March 25, 2019, the Acting Defense Secretary invoked § 284 and approved the provision of support for DHS’s “El Paso Sector Project 1” (which would involve DoD construction of border fencing, roads, and lighting in Luna

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee4499ooff8822

SIERRA CLUB V. TRUMP

49

and Doña Ana Counties in New Mexico), as well as for, inter alia, DHS’s “Yuma Sector Project 1” (which would involve DoD construction of similar border infrastructure in Yuma County, Arizona). Thereafter, the Secretary of Homeland Security invoked his authority under § 102(c) of IIRIRA to waive a variety of federal environmental statutes with respect to the planned construction of border infrastructure in the relevant portions of the El Paso Sector and the Yuma Sector, as well as “all . . . state . . . laws, regulations, and legal requirements of, deriving from, or related to the subject of,” those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24, 2019); 84 Fed. Reg. 17187, 17188 (Apr. 24, 2019).

Subsequently, on May 9, 2019, the Acting Defense Secretary again invoked § 284, this time to approve DoD’s construction of similar border infrastructure to support DHS’s “El Centro Sector Project 1” in Imperial County, California, and DHS’s “Tucson Sector Projects 1, 2, and 3” in Pima and Cochise Counties in Arizona. Less than a week later, the Secretary of Homeland Security again invoked his authority under IIRIRA § 102(c) to waive federal and state environmental laws, this time with respect to the construction in the relevant sections of the El Centro Sector and the Tucson Sector. See 84 Fed. Reg. 21800, 21801 (May 15, 2019); 84 Fed. Reg. 21798, 21799 (May 15, 2019).

Although § 284 authorized the Acting Defense Secretary to provide this support, there were insufficient funds in the relevant DoD appropriation to do so. Specifically, for Fiscal Year 2019, Congress had appropriated for “Drug Interdiction and Counter-Drug Activities, Defense” a total of only $670,271,000 that could be used for counter-drug support. See DoD Appropriations Act, Title VI, 132 Stat. at 2997 (appropriating, under Title governing “Other Department of

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5500ooff8822

50

SIERRA CLUB V. TRUMP

Defense Programs,” a total of “$881,525,000, of which $517,171,000 shall be for counter-narcotics support”); id., Title IX, 132 Stat. at 3042 (appropriating $153,100,000 under the Title governing “Overseas Contingency Operations”). Accordingly, to support the El Paso Sector Project 1 and Yuma Sector Project 1, the Acting Secretary on March 25, 2019 invoked his authority to transfer appropriations under § 8005 of the DoD Appropriations Act and ordered the transfer of $1 billion from “excess Army military personnel funds” into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. That transfer was accomplished by moving $993,627,000 from the “Military Personnel, Army” appropriation and $6,373,000 from the “Reserve Personnel, Army” appropriation.

To support the El Centro Sector Project 1 and Tucson Sector Projects 1, 2, and 3, the Acting Secretary on May 9, 2019 again invoked his transfer authority to move an additional $1.5 billion into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Pursuant to § 8005 of the DoD Appropriations Act, DoD transferred a total of $818,465,000 from 12 different DoD appropriations into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Invoking the Secretary’s distinct but comparable authority under § 9002 to transfer funds appropriated under the separate Title governing “Overseas Contingency Operations,” DoD transferred $604,000,000 from the “Afghanistan Security Forces Fund” appropriation and $77,535,000 from the “Operation and Maintenance, Defense-Wide” appropriation into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5511ooff8822

SIERRA CLUB V. TRUMP

51

B

The complex procedural context of this case involves two parallel lawsuits and four appeals to this court, and it has already produced one published Ninth Circuit opinion that was promptly displaced by the Supreme Court.

1

The Organizations filed this action in the district court against the Acting Defense Secretary, DoD, and a variety of other federal officers and agencies. In their March 18, 2019 First Amended Complaint, they sought to challenge, inter alia, any transfer of funds by the Acting Secretary under § 8005 or § 9002. California and New Mexico, joined by several other States, filed a similar action, and their March 13, 2019 First Amended Complaint also sought to challenge any such transfers. Both sets of plaintiffs moved for preliminary injunctions in early April 2019. The portion of the States’ motion that was directed at the § 8005 transfers was asserted only on behalf of New Mexico and only with respect to the construction on New Mexico’s border (i.e., El Paso Sector Project 1). The Organizations’ motion was likewise directed at El Paso Sector Project 1, but it also challenged Yuma Sector Projects 1 and one other project (“Yuma Sector Project 2”).

After concluding that the Organizations were likely to prevail on their claims that the transfers under § 8005 were unlawful and that these organizational plaintiffs had demonstrated a “likelihood of irreparable harm to their members’ aesthetic and recreational interests,” the district court on May 24, 2019 granted a preliminary injunction enjoining Defendants from using transferred funds for “Yuma

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5522ooff8822

52

SIERRA CLUB V. TRUMP

Sector Project 1 and El Paso Sector Project 1.”2 In a companion order, however, the district court denied preliminary injunctive relief to the States. Although the court held that New Mexico was likely to succeed on its claim that the transfers under § 8005 were unlawful, the court concluded that, in light of the grant of a preliminary injunction against El Paso Sector Project 1 to the Organizations, New Mexico would not suffer irreparable harm from the denial of its duplicative request for such relief. On May 29, 2019, Defendants appealed the preliminary injunction in favor of the Organizations, and after the district court refused to stay that injunction, Defendants moved in this court for an emergency stay on June 3, 2019. New Mexico did not appeal the district court’s denial of its duplicative request for a preliminary injunction.

2

While the Defendants’ emergency stay request was being briefed and considered in this court, the Organizations moved for partial summary judgment on June 12, 2019. The motion was limited to the issue of whether the transfers under § 8005 and § 9002 were lawful, and it requested corresponding declaratory relief, as well as a permanent injunction against the use of transferred funds for all six projects (El Paso Sector Project 1, El Centro Sector Project 1, Yuma Sector Project 1, and Tucson Sector Projects 1, 2, and 3). California and New Mexico (but not the other States) filed a comparable summary judgment motion that same day, directed only at El Paso

2 By the time the district court ruled, DoD had decided not to use funds transferred under § 8005 for any construction in Yuma Sector Project 2, and so the request for a preliminary injunction as to that project was moot.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5533ooff8822

SIERRA CLUB V. TRUMP

53

Sector Project 1 and El Centro Sector Project 1. Defendants filed cross-motions for summary judgment on the legality of the transfers under § 8005 and § 9002 with respect to the corresponding projects at issue in each case.

On June 28, 2019, the district court granted partial summary judgment and declaratory relief to both sets of plaintiffs, concluding that the transfers under § 8005 and § 9002 were unlawful. The court granted permanent injunctive relief to the Organizations against all six projects, but it denied any such relief to California and New Mexico. The district court concluded that California and New Mexico had failed to prove a threat of future demonstrable environmental harm. The court expressed doubts about the States’ alternative theory that they had demonstrated injury to their sovereign interests, but the court ultimately concluded that it did not need to resolve that issue. As before, the district court instead held that California and New Mexico would not suffer any irreparable harm in light of the duplicative relief granted to the Organizations. The district court denied Defendants’ cross-motions for summary judgment in both cases. Invoking its authority under Federal Rule of Civil Procedure 54(b), the district court entered partial judgments in favor of, respectively, the Sierra Club and SBCC, and California and New Mexico. The district court denied Defendants’ request to stay the permanent injunction pending appeal.

3

On June 29, 2019, Defendants timely appealed in both cases and asked this court to stay the permanent injunction based on the same briefing and argument that had been presented in the preliminary injunction appeal. California

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5544ooff8822

54

SIERRA CLUB V. TRUMP

and New Mexico timely cross-appealed nine days later. On July 3, 2019, this court consolidated Defendants’ appeal of the judgment and permanent injunction with Defendants’ pending appeal of the preliminary injunction.3 That same day, a motions panel of this court issued a 2–1 published decision denying Defendants’ motion for a stay of the permanent injunction (which had overtaken the preliminary injunction). See Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019).

Defendants then applied to the Supreme Court for a stay of the permanent injunction pending appeal, which the Court granted on July 26, 2019. See Trump v. Sierra Club, 140 S. Ct. 1 (2019). That stay remains in effect “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” Id. at 1. In granting the stay, the Court concluded that “the Government has made a sufficient showing at this stage that [the Sierra Club and SBCC] have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id.

II

Defendants have not contested the Article III standing of the Sierra Club and SBCC on appeal, but as the majority notes, “‘the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.’” See Maj. Opin. at 17 n.9 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)). As “an

3 This court later consolidated the appeal and cross-appeal in the States’ case with the already-consolidated appeals in this case.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5555ooff8822

SIERRA CLUB V. TRUMP

55

indispensable part of the plaintiff’s case, each element” of Article III standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife (Lujan v. Defenders), 504 U.S. 555, 561 (1992). Thus, although well-pleaded allegations are enough at the motion-to-dismiss stage, they are insufficient to establish standing at the summary-judgment stage. Id. “In response to a summary judgment motion, . . . the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Id. (simplified).

In reviewing standing sua sponte in the context of crossmotions for summary judgment, it is appropriate to apply the more lenient standard that takes the plaintiffs’ evidence as true and then asks whether a reasonable trier of fact could find Article III standing. Lujan v. Defenders, 504 U.S. at 563 (applying this standard in evaluating whether Government’s cross-motion for summary judgment should have been granted). In their briefs below concerning the parties’ crossmotions, the Sierra Club and SBCC each asserted that Defendants’ allegedly unlawful conduct caused harm to their members’ recreational, aesthetic, and environmental interests. Accepting the Organizations’ evidence as true, and drawing all reasonable inferences in their favor, a reasonable trier of fact could conclude that at least the Sierra Club has associational standing under Hunt v. Washington State Apple

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5566ooff8822

56

SIERRA CLUB V. TRUMP

Advert. Comm’n, 432 U.S. 333 (1977).4 Under the Hunt test, an association has standing if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343. The Sierra Club has presented sufficient evidence as to each of these three requirements.

To establish that its members would suffer irreparable harm absent a permanent injunction, the Sierra Club presented declarations from members who regularly visit the respective project areas. These members described how the construction and the resulting border barriers would interfere with their enjoyment of the surrounding landscape and would impede their ability to fish, to hunt, to monitor and document wildlife and vegetation for educational purposes, and to participate in other activities near the project sites. These injuries to the members’ recreational, aesthetic, and environmental interests are sufficient to constitute an injuryin-fact for Article III purposes. See Lujan v. Defenders, 504 U.S. at 562–63 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). Moreover, these injuries are fairly traceable to the construction, and an injunction blocking the transfers would redress those injuries by effectively stopping that

4 The district court explicitly addressed Article III standing only in connection with the preliminary injunction motion. Although Article III standing was not revisited when the Organizations subsequently moved for summary judgment and a permanent injunction, the Organizations’ showing of injury in support of a permanent injunction provides a sufficient basis for evaluating their Article III standing.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5577ooff8822

SIERRA CLUB V. TRUMP

57

construction. See id. at 560–61. This evidence is therefore sufficient to establish that these members would have Article III standing to sue in their own right.

The other Hunt requirements are also satisfied. These members’ interests are clearly germane to the Sierra Club’s mission to protect the natural environment and local wildlife and plant life. And in seeking declaratory and injunctive relief, the lawsuit does not require the participation of individual members. See Hunt, 432 U.S. at 343.

Because the Sierra Club satisfies the applicable standing requirements as to all of the challenged projects, we may proceed to the merits without having to address SBCC’s standing. See Secretary of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly does have standing, we need not address the standing of the other [plaintiffs], whose position here is identical to the State’s.”). And given my view that the Organizations’ legal challenges fail, I perceive no obstacle to entering judgment against both the Sierra Club and SBCC without determining whether the latter has standing. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 98 (1998).

III

After examining the Article III standing of the Organizations, the majority then proceeds straight to the merits of whether the transfers were unlawful. See Maj. Opin. at 23. But we ought not address that issue unless we have first determined that the Organizations have asserted a viable cause of action that properly brings that issue before us. See Air Courier Conf. v. American Postal Workers Union AFL-CIO, 498 U.S. 517, 530–31 (1991). The majority

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5588ooff8822

58

SIERRA CLUB V. TRUMP

belatedly gets to that question in Section V of its opinion, holding that the Organizations have two viable causes of action: an equitable cause of action under the Constitution and an ultra vires cause of action. See Maj. Opin. at 25. I disagree with that conclusion, and I also disagree with the Organizations’ alternative argument that they have a valid cause of action under the Administrative Procedure Act (“APA”). See Trump v. Sierra Club, 140 S. Ct. at 1 (“[T]he Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.”).5

5 In its merits analysis, the majority scarcely cites the motions panel’s published decision, which addressed the Organizations’ likelihood of success on the merits of many of the same issues before us. I agree with the majority’s implicit rejection of the Organizations’ contention that the motions panel’s opinion bars this merits panel from examining these issues afresh. Although the motions panel decision is a precedent, it remains subject to reconsideration by this court until we issue our mandate. See United States v. Houser, 804 F.2d 565, 567–68 (9th Cir. 1986) (distinguishing, on this point, between reconsideration of a prior panel’s decision “during the course of a single appeal” and a decision “on a prior appeal”); cf. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (three-judge panel lacks authority to overrule a decision in a prior appeal in the same case). To the extent that Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015), suggests otherwise, that suggestion is dicta and directly contrary to our decision in Houser. See East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1261–65 (9th Cir. 2020). In all events, the precedential force of the motions panel’s opinion was largely, if not entirely, vitiated by the Supreme Court’s subsequent decision to grant the very stay that the motions panel’s opinion denied. I do not agree, however, with the majority’s disregard of the Supreme Court’s order in this case—a disregard that hardly befits the “wary and humble” attitude the majority professes. See Maj. Opin. at 25–26.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee5599ooff8822

SIERRA CLUB V. TRUMP

59

A

Although the Organizations invoke the APA only as a fallback to their preferred non-statutory claims, I think it is appropriate to first consider whether they have a statutory cause of action under the APA. Cf. Chamber of Commerce v. Reich, 74 F.3d 1322, 1326–27 (D.C. Cir. 1996) (suggesting that, if a plaintiff relies on both the APA and non-statutoryreview claims, the APA claim should be considered first). Even assuming arguendo that the APA does not displace reliance upon alternative non-statutory causes of action, see infra at 69, the contours of any express cause of action under the APA certainly provide appropriate context for the consideration of any non-statutory claim.

In authorizing suit by any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, the APA incorporates the familiar zone-of-interests test, which reflects a background principle of law that always “applies unless it is expressly negated,” Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014).6 That test requires a plaintiff to “establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. NWF, 497 U.S. at

6 The Supreme Court has not squarely addressed whether the zone-ofinterests test applies to a plaintiff who claims to have “suffer[ed] legal wrong because of agency action,” which is the other class of persons authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National Wildlife Fed. (Lujan v. NWF), 497 U.S. 871, 882–83 (1990). The Organizations have not invoked any such theory here, so I have no occasion to address it.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6600ooff8822

60

SIERRA CLUB V. TRUMP

883 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 396–97 (1987)). This test “is not meant to be especially demanding.” Clarke, 479 U.S. at 399. Because the APA was intended to confer “generous review” of agency action, the zone-of-interests test is more flexibly applied under that statute than elsewhere, and it requires only a showing that the plaintiff is “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Orgs., Inc. v. Camp (Data Processing), 397 U.S. 150, 153, 156 (1970) (emphasis added); see also Bennett, 520 U.S. at 163 (“what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the generous review provisions of the APA may not do so for other purposes”) (simplified). Because an APA plaintiff need only show that its interests are “arguably” within the relevant zone of interests, “the benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Although these standards are generous, the Organizations have failed to satisfy them.

1

In applying the zone-of-interests test, we must first identify the “statutory provision whose violation forms the legal basis for [the] complaint” or the “gravamen of the complaint.” Lujan v. NWF, 497 U.S. at 883, 886; see also Air Courier Conf., 498 U.S. at 529. That question is easy here. The Organizations’ complaint alleges that the challenged transfers are not authorized by § 8005 and § 9002 because “[t]he diversion of funding to build a border wall or fence is not based on unforeseen military requirements”; “the building of a permanent border wall is not a ‘military requirement’”;

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6611ooff8822

SIERRA CLUB V. TRUMP

61

and “Congress has denied funding for Defendants’ planned wall construction, thus barring the Department of Defense from using transfers to fund it.”7 The Organizations allege that, because Congress thus “has not authorized the Department of Defense to transfer additional Defense funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of supporting another agency, rather than for military requirements,” the Appropriations Clause bars the transfers and “Defendants are acting ultra vires in seeking to transfer funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent border wall.” Given that the case turns on whether the transfers met the criteria in § 8005, that statute is plainly the “gravamen of the complaint,” and it therefore defines the applicable zone of interests. Lujan v. NWF, 497 U.S. at 886.

Although the Organizations invoke the Appropriations Clause and the constitutional separation of powers in contending that Defendants’ actions are unlawful, any such constitutional violations here can be said to have occurred only if the transfers violated the limitations set forth in § 8005: if Congress authorized DoD to transfer the appropriated funds from one account to another, and to spend them accordingly, then the money has been spent “in Consequence of Appropriations made by Law,” U.S. CONST. art. I, § 9, cl. 7, and the Executive has not otherwise

7 Because the limitations on transfers set forth in § 8005 also apply to transfers under § 9002, see 132 Stat. at 3042, the parties use “§ 8005” to refer to both provisions, and I will generally do so as well.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6622ooff8822

62

SIERRA CLUB V. TRUMP

transgressed the separation of powers.8 All of the Organizations’ theories for challenging the transfers— whether styled as constitutional claims or as statutory claims—thus rise or fall based on whether DoD has transgressed the limitations on transfers set forth in § 8005. As a result, § 8005 is obviously the “statute whose violation is the gravamen of the complaint.” Lujan v. NWF, 497 U.S. at 886. To maintain a claim under the APA, therefore, the Organizations must establish that they are within the zone of interests of § 8005.9

8 The only possible exception is the Organizations’ argument that § 8005 itself violates the Presentment Clause. As explained below, that contention is frivolous. See infra at 71–72.
9 The Organizations briefly contend that DoD has exceeded its authority under § 284 and has violated the National Environmental Policy Act (“NEPA”), but even assuming arguendo that the Organizations have a cause of action to raise any such challenges, they are patently without merit. The Organizations note that § 284 contains a special reporting requirement for “small scale construction” projects, which are defined as projects costing $750,000 or less, 10 U.S.C. § 284(h)(1)(B), (i)(3), and they argue that this shows that Congress did not authorize projects on the scale at issue here. The inference is a non sequitur: the fact that Congress requires special reporting of these smaller projects does not mean that they are the only projects authorized. Congress may have imposed such a unique reporting requirement in order to capture the sort of smaller-scale activities that might otherwise have escaped its notice. And the fact that past expenditures under § 284 have happened to be for more modest projects is irrelevant, because nothing in the text of § 284 imposes any such size limits on the projects authorized by that statute. The Organizations’ reliance on NEPA is likewise meritless. We have upheld DHS’s waiver of NEPA under § 102(c) of IIRIRA, see In re Border Infrastructure Envtl. Litig., 915 F.3d 1213, 1225 (9th Cir. 2019), and the district court correctly concluded that the waiver applies to construction that DoD undertakes under § 284 to “provide support” to DHS at DHS’s “request[],” 10 U.S.C. § 284. See Sierra Club v. Trump, 379 F. Supp. 3d 883, 922–23 (N.D. Cal. 2019).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6633ooff8822

SIERRA CLUB V. TRUMP

63

2

Having identified the relevant statute, our next task is to “discern the interests arguably to be protected by the statutory provision at issue” and then to “inquire whether the plaintiff’s interests affected by the agency action in question are among them.” National Credit Union Admin. v. First Nat’l Bank & Trust Co. (NCUA), 522 U.S. 479, 492 (1998) (simplified). Identifying the interests protected by § 8005 is not difficult, and here the Organizations’ asserted interests are not among them.

Section 8005 is a grant of general transfer authority that allows the Secretary of Defense, if he determines “that such action is necessary in the national interest” and if the Office of Management and Budget approves, to transfer from one DoD “appropriation” into another up to $4 billion of the funds that have been appropriated under the DoD Appropriations Act “for military functions (except military construction).” See 132 Stat. at 2999. Section 8005 contains five provisos that further regulate this transfer authority, and the only limitations on the Secretary’s authority that the Organizations claim were violated here are all contained in the first such proviso. That proviso states that “such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Id.10 The remaining provisos require prompt notice to Congress “of all transfers made pursuant to this

10 Similar language has been codified into permanent law. See 10 U.S.C. § 2214(b). No party contends that § 2214(b) alters the relevant analysis under the comparably worded provision in § 8005.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6644ooff8822

64

SIERRA CLUB V. TRUMP

authority or any other authority in this Act”; proscribe the use of funds to make requests to the Committees on Appropriations for reprogrammings that are inconsistent with the restrictions described in the first proviso; set a time limit for making requests for multiple reprogrammings; and exempt “transfers among military personnel appropriations” from counting towards the $4 billion limit. Id.

Focusing on “the particular provision of law upon which the plaintiff relies,” Bennett, 520 U.S. at 175–76, makes clear that § 8005 as a whole, and its first proviso in particular, are aimed at tightening congressional control over the appropriations process. The first proviso’s general prohibition on transferring funds for any item that “has been denied by the Congress” is, on its face, a prohibition on using the transfer authority to effectively reverse Congress’s specific decision to deny funds to DoD for that item. 132 Stat. at 2999. The second major limitation imposed by the first proviso states that the transfer authority is not to be used unless, considering the items “for which [the funds were] originally appropriated,” there are “higher priority items” for which the funds should now be used in light of “military requirements” that were “unforeseen” in DoD’s request for Fiscal Year 2019 appropriations. Id. The obvious focus of this restriction is likewise to protect congressional judgments about appropriations by (1) restricting DoD’s ability to reprioritize the use of funds differently from how Congress decided to do so and (2) precluding DoD from transferring funds appropriated by Congress for “military functions” for purposes that do not reflect “military requirements.” The remaining provisos, including the congressional reporting requirement, all similarly aim to maintain congressional control over appropriations. And all of the operative restrictions in § 8005 that the Organizations

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6655ooff8822

SIERRA CLUB V. TRUMP

65

invoke here are focused solely on limiting DoD’s ability to use the transfer authority to reverse the congressional judgments reflected in DoD’s appropriations.

In addition to preserving congressional control over DoD’s appropriations, § 8005 also aims to give DoD some measure of flexibility to make necessary changes. Notably, in authorizing the Secretary to make transfers among appropriations, § 8005’s first proviso specifies only one criterion that he must consider in exercising that discretion: he must determine whether the item for which the funds will be used is a “higher priority item[]” in light of “unforeseen military requirements.” 132 Stat. at 2999 (emphasis added). Under the statute, he need not consider any other factor concerning either the original use for which the funds were appropriated or the new use to which they will now be put.

In light of these features of § 8005, the “interests” that the Organizations claim are “affected by the agency action in question” are not “among” the “interests arguably to be protected” by § 8005. NCUA, 522 U.S. at 492 (simplified). In particular, the Organizations’ asserted recreational, aesthetic, and environmental interests clearly lie outside the zone of interests protected by § 8005. The statute does not mention recreational, aesthetic, and environmental interests, nor does it require the Secretary to consider such interests. On the contrary, the statute requires him only to consider whether an item is a “higher priority” in light of “military requirements,” and it is otherwise entirely neutral as to the uses to which the funds will be put. Indeed, that neutrality is reflected on the face of the statute, which says that, once the transfer is made, the funds are “merged with and . . . available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.” 132 Stat.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6666ooff8822

66

SIERRA CLUB V. TRUMP

at 2999 (emphasis added). Because the alleged recreational, aesthetic, and environmental harms that the Organizations assert here play no role in the analysis that § 8005 requires the Secretary to conduct, and are not among the harms that § 8005’s limitations seek to address or protect, the Organizations’ interests in avoiding these harms are not within § 8005’s zone of interests.

Moreover, focusing on the specific interests for which the Organizations have presented sufficient evidentiary support at the summary-judgment stage, see Lujan v. NWF, 497 U.S. at 884–85, further confirms that, in deciding whether to redirect excess military personnel funds under § 8005 to assist DHS by building fencing to stop international drug smuggling, the Acting Secretary of Defense did not have to give even the slightest consideration to whether that reprogramming of funds would disrupt views of the desert landscape or affect local flora and fauna. Put simply, the Organizations’ recreational, aesthetic, and environmental interests are “‘so marginally related to . . . the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Patchak, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399).

3

The Organizations nonetheless claim that they fall within § 8005’s zone of interests because § 8005 was “aimed at tightening congressional control over executive spending,” and the Organizations’ interests do not “meaningfully diverge from Congress’s interests in enacting the statute.” This contention fails. As the Supreme Court made clear in Lujan v. NWF, the zone-of-interests test requires the plaintiff to make a factual showing that the plaintiff itself, or someone

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6677ooff8822

SIERRA CLUB V. TRUMP

67

else whose interests the plaintiff may properly assert, has a cognizable interest that falls within the relevant statute’s zone of interests. 497 U.S. at 885–99 (addressing whether the interests of NWF—or of any of its members, whose interests NWF could validly assert under Hunt’s associational standing doctrine—had been shown to be within the relevant zone of interests). I am aware of no precedent that would support the view that these Organizations can represent the interests of Congress (akin to NWF’s representation of the interests of its members), much less that they can do so merely because they are sympathetic to Congress’s perceived policy objectives.11 But the Organizations do not actually rely on such a novel theory. Instead, the Organizations suggest that, merely because their overall litigation objectives here do not diverge from those of Congress, they have thereby satisfied the zoneof-interests test with respect to their own interests. This theory is clearly wrong.

The critical flaw in the Organizations’ analysis is that it rests, not on the interests they are asserting (preservation of landscape, flora, fauna, etc.), but on the legal theory that the Organizations invoke to protect those interests here. But the zone-of-interests test focuses on the former and not the latter. See Lujan v. NWF, 497 U.S. at 885–89. Indeed, if the Organizations were correct, that would effectively eliminate

11 Even if the Organizations could assert Congress’s interests in some representational capacity, they could do so only if the injury to Congress’s interests satisfied the requirements of Article III standing. See Air Courier Conf., 498 U.S. at 523–24 (zone-of-interests test is applied to those injuries-in-fact that meet Article III requirements). I express no view on that question. Cf. U.S. House of Reps. v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019) (holding that House lacks Article III standing to challenge the transfers at issue here), appeal ordered heard en banc, 2020 WL 1228477 (D.C. Cir. 2020).

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6688ooff8822

68

SIERRA CLUB V. TRUMP

the zone-of-interests test. By definition, anyone who alleges a violation of a particular statute has thereby invoked a legal theory that does not “meaningfully diverge” from the interests of those other persons or entities who are within that statute’s zone-of-interests. Such a tautological congruence between the Organizations’ legal theory and Congress’s institutional interests is not sufficient to satisfy the zone-ofinterests test here.

The Organizations suggest that their approach is supported by the D.C. Circuit’s decision in Scheduled Airlines Traffic Offices, Inc. v. Department of Defense, 87 F.3d 1356 (D.C. Cir. 1996), but that is wrong. As the opinion in that case makes clear, the D.C. Circuit was relying on the same traditional zone-of-interests test, under which a plaintiff’s interests are “outside the statute’s ‘zone of interests’ only ‘if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” 87 F.3d at 1360 (quoting Clarke, 479 U.S. at 399). The court mentioned “congruence” in the course of explaining why the plaintiff’s interests in that case were “not more likely to frustrate than to further statutory objectives,” i.e., why those interests were not inconsistent with the purposes implicit in the statute. Id. (simplified). It did not thereby suggest—and could not properly have suggested—that the mere lack of any such inconsistency is alone sufficient under the zone-of-interests test. Here, the problem is not that the Organizations’ interests are inconsistent with the purposes of § 8005, but rather that they are too “marginally related” to those purposes. See supra at 66.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee6699ooff8822

SIERRA CLUB V. TRUMP

69

The Organizations also suggest that we must apply the zone-of-interests test broadly here, because—given Congress’s inability to enforce the limitations of § 8005 directly—the agency’s transfers would otherwise be effectively “unreviewable.” The assumption that no one will ever be able to sue for any violation of § 8005 seems doubtful, cf. Sierra Club v. Trump, 929 F.3d at 715 (N.R. Smith, J., dissenting) (suggesting that “those who would have been entitled to the funds as originally appropriated” may be within the zone of interests of § 8005), but in any event, we are not entitled to bend the otherwise applicable—and already lenient—standards to ensure that someone will be able to sue in this case or others like it.

B

As noted earlier, the Organizations only invoke the APA as a fallback option, and they instead insist that they may assert claims under the Constitution, as well as an equitable cause of action to enjoin “ultra vires” conduct. The Organizations do not have a cause of action under either of these theories.

1

The Organizations contend that they are not required to satisfy any zone-of-interests test to the extent that they assert non-APA causes of action to enjoin Executive officials from taking unconstitutional action.12 Even assuming that an

12 It is not entirely clear that the Organizations are alternatively contending that APA claims to enjoin unconstitutional conduct, see 5 U.S.C. § 706(2)(B), are exempt from the zone-of-interests test. To the extent that they are so contending, the point seems doubtful. See Data

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7700ooff8822

70

SIERRA CLUB V. TRUMP

equitable cause of action to enjoin unconstitutional conduct exists alongside the APA’s cause of action, see Juliana v. United States, 947 F.3d 1159, 1167–68 (9th Cir. 2020); Navajo Nation v. Department of the Interior, 876 F.3d 1144, 1172 (9th Cir. 2017); but see Sierra Club v. Trump, 929 F.3d at 715–17 (N.R. Smith, J., dissenting), it avails the Organizations nothing here. The Organizations have failed to allege the sort of constitutional claim that might give rise to such an equitable action, because their “constitutional” claim is effectively the very same § 8005-based claim dressed up in constitutional garb. And even if this claim counted as a “constitutional” one, it would still be governed by the same zone of interests defined by the relevant limitations in § 8005.

a

The Organizations assert three constitutional claims in their operative complaint: (1) that Defendants have violated the constitutional separation of powers by “usurp[ing] Congress’s legislative authority”; (2) that Defendants have violated the Presentment Clause by “modify[ing] or repeal[ing] Congress’s appropriations legislation by executive proclamation, rather than by law”; and (3) that Defendants have violated the Appropriations Clause by “allocat[ing] money from the Department of the Treasury by executive proclamation, rather than by law, and in contravention of restrictions contained in Congress’s appropriations’ laws.”

Processing, 397 U.S. at 153 (zone-of-interests test requires APA claimant to show that its interest “is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”). But in all events, any such APA-based claim to enjoin unconstitutional conduct would fail for the same reasons as the Organizations’ purported free-standing equitable claim to enjoin such conduct.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7711ooff8822

SIERRA CLUB V. TRUMP

71

As clarified in their subsequent briefing, the Organizations assert both what I will call a “strong” form of these constitutional arguments and a more “limited” form. In its strong form, the Organizations’ argument is that, even if § 8005 authorized the transfers in question here, those transfers nonetheless violated the Presentment Clause. In its more limited form, the Organizations’ argument is that the transfers violated the separation of powers, the Presentment Clause, and the Appropriations Clause because the transfers were not authorized by § 8005.

I need not address whether the Organizations have an equitable cause of action to assert the strong form of their constitutional argument, because in my view that argument on the merits is so “wholly insubstantial and frivolous” that it would not even give rise to federal jurisdiction. Bell v. Hood, 327 U.S. 678, 682–83 (1946); see also Steel Co., 523 U.S. at 89. If § 8005 allowed the transfers here, then that necessarily means that the Executive has properly spent funds that Congress, by statute, has appropriated and allowed to be spent for that purpose. Cf. Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (“allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion”). By transferring funds after finding that the statutory conditions for doing so are met, an agency thereby “execut[es] the policy that Congress had embodied in the statute” and does not unilaterally alter or repeal any law in violation of the Presentment Clause or the separation of powers. See Clinton v. City of New York, 524 U.S. 417, 444 (1998). If anything, it is the Organizations’ theory—that the federal courts must give effect to an alleged broader congressional judgment against border funding regardless of whether that judgment

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7722ooff8822

72

SIERRA CLUB V. TRUMP

is embodied in binding statutory language—that would offend separation-of-powers principles.

That leaves only the more limited form of the Organizations’ argument, which is that, if § 8005 did not authorize the transfers, then the expenditures violated the Appropriations Clause, the Presentment Clause, and the separation of powers. Under Dalton v. Specter, 511 U.S. 462 (1994), this theory—despite its constitutional garb—is properly classified as “a statutory one,” id. at 474. It therefore does not fall within the scope of the asserted nonAPA equitable cause of action to enjoin unconstitutional conduct.13

In Dalton, the Court addressed a non-APA claim to enjoin Executive officials from implementing an allegedly unconstitutional Presidential decision to close certain military bases under the Defense Base Closure and Realignment Act of 1990. 511 U.S. at 471.14 But the claim in Dalton was not that the President had directly transgressed an applicable constitutional limitation; rather, the claim was that, because Executive officials “violated the procedural requirements” of the statute on which the President’s decision ultimately rested, the President thereby “act[ed] in excess of his statutory authority” and therefore “violate[d] the

13 There remains the Organizations’ claim that statutory violations may be enjoined under a non-APA ultra vires cause of action for equitable relief, but that also fails for the reasons discussed below. See infra at 79–80.
14 The plaintiffs in Dalton also asserted a claim under the APA itself, but that claim failed for the separate reason that the challenged final action was taken by the President personally, and the President is not an “agency” for purposes of the APA. See 511 U.S. at 469.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7733ooff8822

SIERRA CLUB V. TRUMP

73

constitutional separation-of-powers doctrine.” Id. at 471–72. The Supreme Court rejected this effort to “eviscerat[e]” the well-established “distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other.” Id. at 474 (emphasis added). As the Court explained, its “cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” Id. at 472. The Court distinguished Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), on the ground that there “the Government disclaimed any statutory authority for the President’s seizure of steel mills,” and as a result the Constitution itself supplied the rule of decision for determining the legality of the President’s actions. Dalton, 511 U.S. at 473. Because the “only basis of authority asserted was the President’s inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces,” Youngstown thus “necessarily turned on whether the Constitution authorized the President’s actions.” Id. (emphasis added). By contrast, given that the claim in Dalton was that the President had violated the Constitution because Executive officials had “violated the terms of the 1990 Act,” the terms of that statute provided the applicable rule of decision and the claim was therefore “a statutory one.” Id. at 474. And because those claims sought to enjoin conduct on the grounds that it violated statutory requirements, it was subject to the “longstanding” limitation that non-APA “review is not available when the statute in question commits the decision to the discretion of the President.” Id.

Under Dalton, the Organizations’ purported “constitutional” claims—at least in their more limited

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7744ooff8822

74

SIERRA CLUB V. TRUMP

version—are properly classified as statutory claims that do not fall within any non-APA cause of action to enjoin unconstitutional conduct. 511 U.S. at 474. Here, as in Dalton, Defendants have “claimed” the “statutory authority” of § 8005, and any asserted violation of the Constitution would occur only if, and only because, Defendants’ conduct is assertedly not authorized by § 8005. Id. at 473. The rule of decision for this dispute is thus not supplied, as in Youngstown, by the Constitution; rather, it is supplied only by § 8005. Id. at 473–74. Because these claims by the Organizations are thus “statutory” under Dalton, they may only proceed, if at all, under an equitable cause of action to enjoin ultra vires conduct, and they would be subject to any limitations applicable to such claims. Id. at 474. The Organizations do assert such a fallback claim here, but it fails for the reasons I explain below. See infra at 79–80.

b

But even if the Organizations’ claims may properly be classified as constitutional ones for purposes of the particular equitable cause of action they invoke here, those claims would still fail.

To the extent that the Organizations argue that the Constitution itself grants a cause of action allowing any plaintiff with an Article III injury to sue to enjoin an alleged violation of the Appropriations Clause, the Presentment Clause, or the separation of powers, there is no support for such a theory. None of the cases cited by the Organizations involved putative plaintiffs, such as the Organizations here, who are near the outer perimeter of Article III standing. On the contrary, these cases involved either allegedly unconstitutional agency actions directly targeting the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7755ooff8822

SIERRA CLUB V. TRUMP

75

claimants, see Bond v. United States, 564 U.S. 211, 225–26 (2011) (criminal defendant challenged statute under which she was convicted on federalism and separation-of-powers grounds); United States v. McIntosh, 833 F.3d 1163, 1174–75 (9th Cir. 2016) (criminal defendants sought to enjoin, based on an appropriations rider and the Appropriations Clause, the Justice Department’s expenditure of funds to prosecute them), or they involved a suit based on an express statutory cause of action, see Clinton v. City of New York, 524 U.S. at 428 (noting that right of action was expressly conferred by 2 U.S.C. § 692(a)(1) (1996 ed.)).

Moreover, the majority’s novel contention that the Constitution requires recognizing, in this context, an equitable cause of action that extends to the outer limits of Article III cannot be squared with the Supreme Court’s decision in Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015). There, the Court rejected the view that the Supremacy Clause itself created a private right of action for equitable relief against preempted statutes, and instead held that any such equitable claim rested on “judge-made” remedies that are subject to “express and implied statutory limitations.” Id. at 325–27. The Supremacy Clause provides a particularly apt analogy here, because (like the Appropriations Clause) the asserted “unconstitutionality” of the challenged action generally depends upon whether it falls within or outside the terms of a federal statute: a state statute is “unconstitutional under the Supremacy Clause” only if it is “contrary to federal law,” Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1361–62 (9th Cir. 1998), and here, the transfers violated the Appropriations Clause only if they were barred by the limitations in § 8005. And just as the Supremacy Clause protects Congress’s “broad discretion with regard to the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7766ooff8822

76

SIERRA CLUB V. TRUMP

enactment of laws,” Armstrong, 575 U.S. at 325–26, so too the Appropriations Clause protects “congressional control over funds in the Treasury,” McIntosh, 833 F.3d at 1175. It is “unlikely that the Constitution gave Congress such broad discretion” to enact appropriations laws only to simultaneously “require[] Congress to permit the enforcement of its laws” by any “private actor[]” with even minimal Article III standing, thereby “limit[ing] Congress’s power” to decide how “to enforce” the spending limitations it enacts. Armstrong, 575 U.S. at 325–26.15

The Appropriations Clause thus does not itself create a constitutionally required cause of action that extends to the limits of Article III. On the contrary, any equitable cause of action to enforce that clause would rest on a “judge-made” remedy: as Armstrong observed, “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” 575 U.S. at 327. At least where, as here, the contours of the applicable constitutional line (under the

15 The majority asserts that Armstrong is distinguishable on the grounds that the Appropriations Clause is supposedly more protective of individual liberty than the Supremacy Clause. See Maj. Opin. at 30–31. Nothing is cited to support this comparative assertion, which seems highly doubtful: there is no reason to think that Congress’s ability, in the exercise of its enumerated powers, to preempt potentially oppressive state laws is any less protective of individual liberty than is Congress’s ability to insert riders in appropriations bills. Moreover, to the extent that these clauses protect individual liberty, they both do so only as a consequence of protecting congressional authority within our overall constitutional structure. Armstrong’s core point—that it would be “strange indeed” to construe a clause that protects congressional power as simultaneously saddling Congress with a particular enforcement method—remains equally applicable to both. 575 U.S. at 326.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7777ooff8822

SIERRA CLUB V. TRUMP

77

Appropriations Clause) are defined by and parallel a statutory line (under § 8005), any such judge-made equitable cause of action would be subject to “express and implied statutory limitations,” as well as traditional limitations governing such equitable claims. Id.

One long-established “‘judicially self-imposed limit[] on the exercise of federal jurisdiction’”—including federal equitable jurisdiction—is the requirement “that a plaintiff’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett, 520 U.S. at 162 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). This limitation is not confined to the APA, but rather reflects a “prudential standing requirement[] of general application” that always “applies unless it is expressly negated” by Congress. Id. at 163.16 Because Congress has not expressly negated that test in any relevant respect, the Organizations’ equitable cause of action to enforce the Appropriations Clause here remains subject to the zone-ofinterests test. Cf. Thompson v. North American Stainless, LP,

16 The majority wrongly contends that, by quoting this language from Bennett, and stating that the zone-of-interests test therefore “applies to all statutorily created causes of action,” Lexmark, 572 U.S. at 129 (emphasis added), the Court in Lexmark thereby intended to signal that the test only applies to statutory claims and not to non-statutory equitable claims. See Maj. Opin. at 36–37. Nothing in Lexmark actually suggests any such negative pregnant; instead, the Court’s reference to “statutorily created causes of action” reflects nothing more than the fact that only statutory claims were before the Court in that case. See 572 U.S. at 129. Moreover, Lexmark notes that the zone-of-interests test’s roots lie in the common law, id. at 130 n.5, and Bennett (upon which Lexmark relied) states that the test reflects a “prudential standing requirement[] of general application” that applies to any “exercise of federal jurisdiction,” 520 U.S. at 162–63.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7788ooff8822

78

SIERRA CLUB V. TRUMP

562 U.S. 170, 176–77 (2011) (construing a cause of action as extending to “any person injured in the Article III sense” would often produce “absurd consequences” and is for that reason rarely done). And given the unique nature of an Appropriations Clause claim, as just discussed, the line between constitutional and unconstitutional conduct here is defined entirely by the limitations in § 8005, and therefore the relevant zone of interests for the Organizations’ Appropriations-Clause-based equitable claim remains defined by those limitations. Thus, contrary to the majority’s conclusion, see Maj. Opin. at 39–40, the Organizations are outside the applicable zone of interests for this claim as well.

In arguing for a contrary view, the Organizations rely heavily on United States v. McIntosh, asserting that there we granted non-APA injunctive relief based on the Appropriations Clause without inquiring whether the claimants were within the zone of interests of the underlying appropriations statute. McIntosh cannot bear the considerable weight that the Organizations place on it.

In McIntosh, we asserted interlocutory jurisdiction over the district courts’ refusal to enjoin the expenditure of funds to prosecute the defendants—an expenditure that allegedly violated an appropriations rider barring the Justice Department from spending funds to prevent certain States from “‘implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.’” 833 F.3d at 1175; see also id. at 1172–73. We held that the defendants had Article III standing and that, if the Department was in fact “spending money in violation” of that rider in prosecuting the defendants, that would produce a violation of the Appropriations Clause that could be raised by the defendants in challenging their prosecutions. Id.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee7799ooff8822

SIERRA CLUB V. TRUMP

79

at 1175. After construing the meaning of the rider, we then remanded the matter for a determination whether the rider was being violated. Id. at 1179. Contrary to the Organizations’ dog-that-didn’t-bark theory, nothing can be gleaned from the fact that the zone-of-interests test was never discussed in McIntosh. See Cooper Indus., Inc. v. Aviall Servs, Inc., 543 U.S. 157, 170 (2004) (“‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’”) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Moreover, any such silence seems more likely to have been due to the fact that it was so overwhelmingly obvious that the defendants were within the rider’s zone of interests that the point was incontestable and uncontested. An asserted interest in not going to prison for complying with state medical-marijuana laws seems well within the zone of interests of a statute prohibiting interference with the implementation of such state laws.

2

The only remaining question is whether the Organizations may evade the APA’s zone-of-interests test by asserting a non-APA claim for ultra vires conduct in excess of statutory authority. Even assuming that such a cause of action exists alongside the APA, cf. Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 189–90 (D.C. Cir. 2006), I conclude that it would be subject to the same zone-of-interests limitations as the Organizations’ APA claims and therefore likewise fails.

For the same reasons discussed above, any such equitable cause of action rests on a judge-made remedy that is subject to the zone-of-interests test. See supra at 74–79. The

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8800ooff8822

80

SIERRA CLUB V. TRUMP

Organizations identify no case from the Supreme Court or this court affirmatively holding that the zone-of-interests test does not apply to a non-APA equitable cause of action to enjoin conduct allegedly in excess of express statutory limitations on statutory authority, and I am aware of none. Indeed, it makes little sense, when evaluating a claim that Executive officials exceeded the limitations in a federal statute, not to ask whether the plaintiff is within the zone of interests protected by those statutory limitations. Cf. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (although plaintiff asserting ultra vires claim may not need to show that its interests “fall within the zones of interests of the constitutional and statutory powers invoked” by Executive officials, when “a particular constitutional or statutory provision was intended to protect persons like the litigant by limiting the authority conferred,” then “the litigant’s interest may be said to fall within the zone protected by the limitation”) (emphasis added).17 Here, those limitations are supplied by § 8005, and the Organizations are not within the zone of interests of that statute.18

17 The majority thus relies on the wrong portion of Judge Bork’s opinion in Haitian Refugee Center. See Maj. Opin. at 37–39. This case turns on a “statutory provision” that “limit[s] the authority conferred.” 809 F.2d at 811 n.14. If the Executive had contended that it had power to transfer the funds regardless of § 8005, then this case would look more like Youngstown, but no such extravagant claim has been pressed in this case. On the contrary, Defendants concede that, if the requirements of § 8005 were not met, then the transfers were unlawful.
18 Even if the Organizations were correct that the zone-of-interests test does not apply to a non-APA equitable cause of action, that would not necessarily mean that such equitable jurisdiction extends, as the Organizations suggest, to the outer limits of Article III. Declining to apply the APA’s generous zone-of-interests test might arguably render applicable the sort of narrower review of agency action that preceded the

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8811ooff8822

SIERRA CLUB V. TRUMP

81

* * *

Given that each of the Organizations’ asserted theories fail, the Organizations lack any cause of action to challenge the DoD’s transfer of funds under § 8005.

IV

Alternatively, even if the Organizations had a cause of action, their claims would fail on the merits, because the challenged transfers did not violate § 8005 or § 9002. In the companion appeal, California v. Trump, the majority concluded that § 8005 and § 9002 did not authorize the transfers at issue, and I concluded that these provisions did authorize the transfers. Just as the majority “reaffirm[s] this holding here and conclude[s] that Section 8005 did not authorize the transfer of funds,” Maj. Opin. at 24, I reaffirm my previous conclusion that § 8005 and § 9002 authorized the transfers.

V

Based on the foregoing, I conclude that at least the Sierra Club has Article III standing, but that the Organizations lack any cause of action to challenge these § 8005 and § 9002 transfers. Alternatively, if the Organizations did have a cause of action, their claims fail on the merits as a matter of law because the transfers complied with the limitations in § 8005 and § 9002. I therefore would reverse the district court’s partial grant of summary judgment to the Organizations and would remand the matter with instructions to grant

APA standards articulated in Data Processing, 397 U.S. at 153. See also Clarke, 479 U.S. at 400 n.16.

CCaassee: 41:91-91-6c1v0-020, 80962/2-H6/S2G020D, IoDc:u1m1e7n3t4259209, DFikletEdn0tr6y/:2168/270-1,PPaaggee8822ooff8822

82

SIERRA CLUB V. TRUMP

Defendants’ motion for summary judgment on this set of claims. Because the majority concludes otherwise, I respectfully dissent.

 
 CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee11oof f110055

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUL 3 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,

No. 19-16102 19-16300

Plaintiffs-Appellees,

D.C. No. 4:19-cv-00892-HSG

Northern District of California,

v.

Oakland

DONALD J. TRUMP, in his official

ORDER

capacity as President of the United States; et

al.,

Defendants-Appellants.

Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges. Order by Judges Clifton and Friedland Dissent by Judge N.R. Smith
CLIFTON and FRIEDLAND, Circuit Judges: This emergency proceeding arises from a challenge to a decision by the
President and certain of his cabinet members (collectively, “Defendants”)1 to

1 When federal officials are parties to litigation, we usually refer to them collectively as “the Government.” That terminology seems inapt in this proceeding given that the question before us is whether the Executive Branch of the federal government is attempting to exercise authority that is allocated by the Constitution to the Legislative Branch of the federal government, and whether the Executive Branch is doing so without authorization from the Legislative Branch.

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee22oof f110055
“reprogram” funds appropriated by Congress to the Department of Defense (“DoD”) for Army personnel needs and to redirect those funds toward building a barrier along portions of our country’s southern border.
This reprogramming decision was made after President Trump had repeatedly sought appropriations from Congress for the construction of a border barrier. Although Congress provided some funding for those purposes, it consistently refused to pass any measures that met the President’s desired funding level, creating a standoff that led to a 35-day partial government shutdown. The President signed the budget legislation that ended the shutdown, but he then declared a national emergency and pursued other means to get additional funding for border barrier construction beyond what Congress had appropriated. One of those means, and the one at issue in this emergency request for a stay, was a reprogramming of funds by DoD in response to a request by the Department of Homeland Security (“DHS”).
Specifically, DoD relied on section 8005 of the Department of Defense Appropriations Act of 2019 and related provisions to reprogram approximately $2.5 billion, moving the funds from DoD to DHS, for the purpose of building
And the House of Representatives, which is part of the Legislative Branch, has filed an amicus brief opposing the Executive Branch’s position. To avoid confusion, we therefore refer to the President and the cabinet members sued here collectively as “Defendants.”
2

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee33oof f110055
border barriers in certain locations within Arizona, California, and New Mexico. Section 8005 authorizes the Secretary of Defense to transfer funds for military purposes if the Secretary determines that the transfer is “for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress.” Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999 (2018) (hereinafter “section 8005”).
The Sierra Club and the Southern Border Communities Coalition (collectively, “Plaintiffs”) sued Defendants to enjoin the reprogramming and the funds’ expenditure. They argued that the requirements of section 8005 had not been satisfied and that the use of the funds to build a border barrier was accordingly unsupported by any congressional appropriation and thus unconstitutional. A federal district court agreed with Plaintiffs and enjoined Defendants from using reprogrammed funds to construct a border barrier. Defendants now move for an emergency stay of the district court’s injunction.
To rule on Defendants’ motion, we consider several factors, including whether Defendants have shown that they are likely to succeed on the merits of their appeal, the degree of hardship to each side that would result from a stay or its denial, and the public interest in granting or denying a stay.
We conclude, first, that Defendants are not likely to succeed on the merits of their appeal. The Appropriations Clause of the Constitution provides that “No
3

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee44oof f110055
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art I., § 9, cl. 7. Defendants assert that, through section 8005, Congress authorized DoD to reprogram the funds at issue. We agree with Plaintiffs, however, that the requirements of section 8005 have not been met. Specifically, the need for which the funds were reprogrammed was not “unforeseen,” and it was an item for which funds were previously “denied by the Congress.” Defendants do not argue that their contrary interpretation of section 8005 is entitled to any form of administrative deference, and we hold that no such deference would be appropriate in any event.
Because section 8005 did not authorize DoD to reprogram the funds—and Defendants do not and cannot argue that any other statutory or constitutional provision authorized the reprogramming—the use of those funds violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.
Defendants contend that these Plaintiffs are unlikely to prevail because they lack a cause of action through which to challenge the reprogramming. We disagree. Plaintiffs either have an equitable cause of action to enjoin a constitutional violation, or they can proceed on their constitutional claims under the Administrative Procedure Act, or both. To the extent any zone of interests test
4

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee55oof f110055
were to apply to Plaintiffs’ constitutional claims, we hold that it would be satisfied here.
Considering the remaining factors relevant to Defendants’ request for a stay—the degree of hardship that may result from a stay or its denial, and the public interest at stake—we are not persuaded that a stay should be entered. There is a strong likelihood that Plaintiffs will prevail in this litigation, and Defendants have a correspondingly low likelihood of success on appeal. As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction. We therefore hold that a stay of the district court’s order granting Plaintiffs an injunction is not warranted.
I. Factual & Procedural Background President Trump has made numerous requests to Congress for funding for construction of a barrier on the U.S.-Mexico border. In his proposed budget for Fiscal Year 2018, for example, the President requested $2.6 billion for border security, including “funding to plan, design, and construct a physical wall along the southern border.” Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2018, at 18 (2017). Congress partially obliged, allocating in the 2018 Consolidated Appropriations Act $1.571
5

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee66oof f110055
billion for border fencing, “border barrier planning and design,” and the “acquisition and deployment of border security technology.” Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a), 132 Stat. 348, 616 (2018). Throughout 2018, House and Senate lawmakers introduced numerous bills that would have authorized or appropriated additional billions for border barrier construction. Specifically, Congress considered and rejected the Securing America’s Future Act of 2018, H.R. 4760, 115th Cong. § 1111 (2018) (instructing the Secretary of Homeland Security to take necessary actions to build a physical barrier on the southern border); the Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th Cong. § 5101 (2018) (appropriating $16.625 billion for a border wall); the American Border Act, H.R. 6415, 115th Cong. § 4101 (2018) (same); the Fund and Complete the Border Wall Act, H.R. 6657, 115th Cong. § 2 (2018) (creating a “Secure the Southern Border Fund” for appropriations for border barrier construction); the Build the Wall, Enforce the Law Act of 2018, H.R. 7059, 115th Cong. § 9 (2018) (again, appropriating $16.625 billion for a “border wall system”); the 50 Votes for the Wall Act, H.R. 7073, 115th Cong. § 2 (2018) (establishing a “Border Wall and Security Trust Fund” of up to $25 billion to “construct a wall (including physical barriers and associated detection technology, roads, and lighting)” along the U.S.-Mexico border); and the WALL Act of 2018, S. 3713, 115th Cong. § 2 (2018)
6

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee77oof f110055
(appropriating $25 billion for the construction of a border wall). Lawmakers spent countless hours considering these various proposals, but none ultimately passed.
The situation reached an impasse in December 2018. During negotiations with Congress over an appropriations bill to fund various parts of the federal government for the remainder of the fiscal year, the President announced his unequivocal position that “any measure that funds the government must include border security.” C-SPAN, Farm Bill Signing (Dec. 20, 2018), https://www.cspan.org/video/?456189-1/president-government-funding-bill-include-moneyborder-wall. He declared that he would not sign any funding bill that did not allocate substantial funding for a physical barrier on the U.S.-Mexico border. Erica Werner et al., Trump Says He Won’t Sign Senate Deal to Avert Shutdown, Demands Funds for Border Security, Wash. Post (Dec. 21, 2018), https://wapo.st/2EIpkHu?tid=ss_tw&utm_term=.6e7c259f6857 (“Werner et al.”). The President also stated that he was willing to declare a national emergency and use other mechanisms to get the money he desired if Congress refused to allocate it. Remarks by President Trump in Meeting with Senate Minority Leader Chuck Schumer and House Speaker-Designate Nancy Pelosi, The White House (Dec. 11, 2018, 11:40 A.M.), https://www.whitehouse.gov/briefings-statements/remarkspresident-trump-meeting-senate-minority-leader-chuck-schumer-house-speakerdesignate-nancy-pelosi/. On December 20, 2018, the House of Representatives
7

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee88oof f110055
passed a continuing resolution that allocated $5.7 billion in border barrier funding. H.R. 695, 115th Cong. § 141 (2018) (“[T]here is appropriated for ‘U.S. Customs and Border Protection—Procurement, Construction, and Improvements’ $5,710,357,000 for fiscal year 2019.”). But the Senate rejected the bill. The President could not reach an agreement with lawmakers on whether the spending bill would include border barrier funding, triggering what would become the nation’s longest partial government shutdown. Werner et al., supra; Mihir Zaveri et al., The Government Shutdown Was the Longest Ever. Here’s the History., N.Y. Times (Jan. 25, 2019), https://nyti.ms/2RATHG9.
On January 6, 2019, during the shutdown, the President “request[ed] $5.7 billion for construction of a steel barrier for the Southwest border” in a letter to the Senate Committee on Appropriations, explaining that the request “would fund construction of a total of approximately 234 miles of new physical barrier,” including in the top ten priority areas in the Border Security Improvement Plan created by Customs and Border Protection (“CBP”). Letter from Russell T. Vought, Acting Dir. of the Office of Mgmt. and Budget, to Richard Shelby, Chairman of the Senate Comm. on Appropriations (Jan. 6, 2019). This represented a $4.1 billion increase over the President’s February 2018 request for $1.6 billion for the Fiscal Year 2019 budget, which had been for the construction of “65 miles
8

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee99oof f110055
of border wall in south Texas.” Office of Mgmt. & Budget, Exec. Office of the President, Budget of the U.S. Government, Fiscal Year 2019, 58 (2018).
After 35 days, the government shutdown ended without an agreement providing increased border barrier funding. Remarks Delivered by President Trump on the Government Shutdown (Jan. 25, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trumpgovernment-shutdown/. Congress passed and the President signed a stopgap spending measure to reopen for three weeks the parts of the Government that had been shut down. H.R.J. Res. 28, 116th Cong. (2019). But the President made clear that he still intended to build a border barrier, with or without funding from Congress. As the Acting White House Chief of Staff explained, the President was prepared to both reprogram money and declare a national emergency to obtain a total sum “well north of $5.7 billion.” Gregg Re, Border Wall Talks Break Down Ahead of Second Possible Government Shutdown, Fox News (Feb. 10, 2019), https://fxn.ws/2SmNK0I.
Congress passed the Consolidated Appropriations Act of 2019 (“CAA”) on February 14, 2019, which included the Department of Homeland Security Appropriations Act for Fiscal Year 2019. Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated only $1.375 billion of the $5.7 billion the President had sought in border barrier funding and specified that the $1.375 billion was “for
9

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1100oof f110055
the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.” Id. § 230(a)(1), 133 Stat. at 28. Congress also imposed several limitations on the use of those funds, including by not allowing construction within certain wildlife refuges and parks. Id. § 231, 133 Stat. at 28.
The President signed the CAA into law the following day. Statement by the President, The White House (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/statement-by-the-president-28/. He concurrently issued a proclamation under the National Emergencies Act, 50 U.S.C. §§ 1601-1651, “declar[ing] that a national emergency exists at the southern border of the United States.” Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) (“Proclamation No. 9844”).
Proclamation No. 9844 described “a border security and humanitarian crisis that threatens core national security interests” because the border served as a major entry point for criminals, gang members, and illicit narcotics and the number of family units entering the United States had recently increased. Id. It declared that this “emergency situation” necessitated support from the Armed Forces. Id. The proclamation made available to DoD “the construction authority provided in” 10 U.S.C. § 2808, which is limited to presidential declarations “that require[] use of the armed forces,” id. § 2808(a).
10

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1111oof f110055
An accompanying White House Fact Sheet explained that the President was “using his legal authority to take Executive action to secure additional resources” to build a border barrier. President Donald J. Trump’s Border Security Victory, The White House (Feb. 15, 2019), https://www.whitehouse.gov/briefingsstatements/president-donald-j-trumps-border-security-victory/. It continued: “Including funding in Homeland Security appropriations, the Administration has so far identified up to $8.1 billion that will be available to build the border wall once a national emergency is declared and additional funds have been reprogrammed.” Id. The fact sheet specifically identified three funding sources: (1) “[a]bout $601 million from the Treasury Forfeiture Fund,” 31 U.S.C. § 9705(a); (2) “[u]p to $2.5 billion under the Department of Defense [reprogrammed] funds transferred [to DHS] for Support for Counterdrug Activities” pursuant to 10 U.S.C. § 284 (“section 284”);2 and (3) “[u]p to $3.6 billion reallocated from [DoD] military construction projects under the President’s
2 Title 10, Chapter 15 of the U.S. Code describes various forms of military support for civilian law enforcement agencies. Within that chapter, section 284 authorizes the Secretary of Defense to “provide support for the counterdrug activities . . . of any other department or agency of the Federal Government” if it receives a request from “the official who has responsibility for the counterdrug activities.” 10 U.S.C. §§ 284(a), 284(a)(1)(A). The statute permits, among other things, support for “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7). DoD’s provision of support for other agencies pursuant to section 284 does not require the declaration of a national emergency.
11

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1122oof f110055
declaration of a national emergency” pursuant to 10 U.S.C. § 2808 (“section 2808”), which provides that the Secretary of Defense may authorize military construction projects whenever the President declares a national emergency that requires use of the armed forces. Id.
The House and Senate adopted a joint resolution terminating the President’s declaration of a national emergency pursuant to Congress’s authority under 50 U.S.C. § 1622(a)(1). H.R.J. Res. 46, 116th Cong. (2019). The President vetoed the joint resolution, Veto Message to the House of Representatives for H.J. Res. 46, The White House (Mar. 15, 2019), https://www.whitehouse.gov/briefingsstatements/veto-message-house-representatives-h-j-res-46/, and a vote in the House to override the veto fell short of the required two-thirds majority, 165 Cong. Rec. H2799, H2814-15 (2019).
Almost immediately, executive branch agencies began to use the funds identified in Proclamation 9844 for border barrier construction. The same day the President issued the proclamation, the Department of the Treasury approved DHS’s December 2018 request to use treasury forfeiture funds to enhance border security infrastructure, providing up to $601 million in funding.3 Letter from
3 The three funding sources the White House had identified were to “be used sequentially and as needed.” President Donald J. Trump’s Border Security Victory, The White House (Feb. 15, 2019). In other words, the government first began spending the treasury forfeiture funds, followed by DoD funding
12

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1133oof f110055
David F. Eisner, Assistant Sec’y for Mgmt., U.S. Dep’t of the Treasury, to the House and Senate Appropriations Comms.’ Subcomms. on Fin. Servs. & Gen. Gov’t (Feb. 15, 2019). Then, on February 25, DHS submitted a request to DoD for assistance, pursuant to section 284, with construction of fences, roads, and lighting within eleven drug-smuggling corridors identified by DHS along the border. Memorandum re: Request for Assistance Pursuant to 10 U.S.C. § 284 from Christina Bobb, Exec. Sec’y, DHS, to Capt. Hallock N. Mohler, Jr., Exec. Sec’y, DoD, (Feb. 25, 2019). In response to that request, on March 25, the Acting Secretary of Defense, Patrick Shanahan, approved the transfer of up to $1 billion in funds from DoD to DHS for the three highest priority drug-smuggling corridors: the Yuma Sector Project 1 and Yuma Sector Project 2 in Arizona, and the El Paso Sector Project 1 in New Mexico.4 Letter from Patrick M. Shanahan, Acting Sec’y of Def., DoD, to Kirstjen Nielsen, Sec’y of Homeland Sec., DHS (Mar. 25, 2019).
To fund the approved projects, Shanahan invoked section 8005 of the Department of Defense Appropriations Act of 2019 and section 1001 of the John S. McCain National Defense Authorization Act (“NDAA”) for Fiscal Year 2019 to “reprogram” approximately $1 billion from Army personnel funds to the
reprogrammed under section 8005 and transferred to DHS pursuant to section 284, and finally military construction funds reallocated under section 2808.
4 The U.S. Army Corps of Engineers, which is tasked with initial project scoping and construction, has since decided not to fund or construct Yuma Project 2 under § 284.
13

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1144oof f110055
counter-narcotics support budget, which Shanahan asserted then made those funds available for transfer to DHS pursuant to section 284. Section 8005 authorizes the Secretary of Defense to transfer up to $4 billion “of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction).” The Secretary must first determine that “such action is necessary in the national interest” and obtain approval from the White House Office of Management and Budget. Section 8005 further provides that the authority to transfer may only be used “for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”5 It also imposes a “prompt[]” congressional notification requirement for all transfers made under its authority. Reprogramming of funds under section 8005 does not require the declaration of a national emergency.
A memo from Shanahan asserted that the statutory requirements for reprogramming under section 8005 had been met: that the items to be funded were a higher priority than the Army personnel funds; that the need to provide support for the Yuma and El Paso Projects was “an unforeseen military requirement not
5 Equivalent language restricting the circumstances in which reprogramming is permitted has been included in defense appropriations statutes since 1974. See Pub. L. No. 93-238, § 735, 87 Stat. 1026, 1044 (1974); H.R. Rep. No. 93-662, at 16 (1973).
14

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1155oof f110055
known at the time of the FY 2019 budget request”; and that support for construction of the border barrier in these areas “ha[d] not been denied by Congress.” Memorandum re: Funding Construction in Support of the Department of Homeland Security Pursuant to 10 U.S.C. § 284 from Patrick M. Shanahan, Acting Sec’y of Def., DoD, to Under Sec’y of Def. (Comptroller)/Chief Fin. Officer (Mar. 25, 2019). Specifically, DoD concluded that “Army personnel funds were available for transfer because expenditures for service member pay and compensation, retirements benefits, food, and moving expenses through the end of fiscal year 2019 [would] be lower than originally budgeted.” As required by section 8005, Shanahan also formally notified Congress of the reprogramming authorization, explaining that the reprogrammed funds were “required” so that DoD could provide DHS the support it requested under section 284.6
The next day, both the House Committee on Armed Services and the House Committee on Appropriations formally disapproved of DoD’s section 8005 reprogramming. The Armed Services Committee wrote in a letter to DoD that it “denie[d] this [reprogramming] request,” and that the committee “[did] not approve the proposed use of Department of Defense funds to construct additional
6 DoD had previously adhered to a “gentlemen’s agreement” with Congress where it sought approval from the relevant committees before reprogramming funds, rather than simply notifying them after the decision had been finalized. House Armed Services Committee Holds Hearing on Fiscal 2020 Defense Authorization, CQ Cong. Transcripts (Mar. 26, 2019).
15

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1166oof f110055
physical barriers and roads or install lighting in the vicinity of the United States border.” Letter from Adam Smith, Chairman of the U.S. House of Representatives Comm. on Armed Servs., to David L. Norquist, Under Sec’y of Def., Comptroller, and Chief Fin. Officer (Mar. 26, 2019). The Appropriations committee similarly denied the reprogramming request. Letter from Peter J. Visclosky, Chairman of the Def. Subcomm. of the U.S. House of Representatives Comm. on Appropriations (Mar. 26, 2019).
Officials at DoD and DHS pressed forward with reprogramming-enabled border barrier construction plans. In early April, DoD awarded contracts for work in the Yuma and El Paso Project areas, and the agencies began environmental planning and consultation. Contracts for Apr. 9, 2019, U.S. Dep’t of Def. (Apr. 9, 2019), https://dod.defense.gov/News/Contracts/Contract-View/Article/1809986/.
Meanwhile, Shanahan reported on May 8 that DoD and DHS had secured funding for DHS to build about 256 miles of border barrier using both treasury forfeiture funds and reprogrammed monies. Acting Defense Secretary Shanahan Testimony on Fiscal Year 2020 Budget Request (C-SPAN May 8, 2019), https://www.c-span.org/video/?460437-1/acting-defensesecretary-shanahantestifies-2020-budget-request. DoD also reported selecting twelve companies to compete for up to $5 billion worth of border barrier construction contracts. Contracts for May 8, 2019, U.S. Dep’t of Def. (May 8, 2019),
16

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1177oof f110055
https://dod.defense.gov/News/Contracts/Contract-View/Article/1842189/. On May
9, Shanahan invoked section 8005 and section 1001 of the NDAA again—along
with related reprogramming provisions, section 9002 of the Department of Defense
Appropriations Act of 2019 and section 1512 of the NDAA7—to authorize an
additional $1.5 billion in reprogramming to fund four more projects.
Memorandum re: Additional Support to the Dep’t of Homeland Security from
Patrick M. Shanahan, Acting Sec’y of Def., DoD (May 9, 2019). The new
projects, El Centro Project 1 and Tucson Sector Projects 1, 2, and 3, are located in
California and Arizona. Around the same time, the President indicated that he
expected to approve additional projects using funds authorized by the national
emergency declaration pursuant to section 2808, although no concrete action has
7 Section 9002 of the Department of Defense Appropriations Act of 2019 authorizes the Secretary of Defense to transfer up to $2 billion between the appropriations or funds made available to DoD if he determines “that such action is necessary in the national interest” and obtains approval from the Office of Management and Budget. Pub. L. No. 115-245, § 9002, 132 Stat 2981, 3042 (2018). Section 9002 “is subject to the same terms and conditions as the authority provided in section 8005.” Id. Section 1512 of the NDAA likewise provides a special transfer authority for up to $3.5 billion upon determination that it is “necessary in the national interest,” and, under section 1001 of the NDAA, is subject to identical terms and conditions as 8005. Pub. L. No. 115-232, § 1512, 132 Stat. 1636, 2096 (2018). Because it is uncontested that all of these reprogramming provisions are subject to section 8005’s requirements, we refer to these requirements collectively by reference to section 8005. See Order Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment, Sierra Club v. Trump, No. 19-cv-00892-HSG, 2019 WL 2715422, at *2 (N.D. Cal. June 28, 2019).
17

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1188oof f110055
been taken in that regard. See White House Memorandum on Sequencing of Border Barrier Construction Authorities (Mar. 4, 2019).
On February 19, 2019, the Sierra Club and Southern Border Communities Coalition filed a lawsuit against Donald J. Trump, in his official capacity as President of the United States; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; Kirstjen M. Nielsen, in her official capacity as Secretary of Homeland Security; and Steven Mnuchin, in his official capacity as Secretary of the Treasury (collectively, “Defendants,” see supra n.1).8 This lawsuit followed closely on the heels of a related action brought by a coalition of states against the same group of Defendants and others.
Plaintiffs are two nonprofit organizations who sued on behalf of themselves and their members. The Sierra Club is dedicated to enjoyment of the outdoors and environmental protection, and it engages in advocacy and public education on issues such as habitat destruction, land use, and the human and environmental impact of construction projects, including the proposed construction of the border barrier. SBCC is a program of Alliance San Diego that brings together organizations from California, Arizona, New Mexico, and Texas to promote
8 The current Acting Secretary of Defense, Mark Esper, has been automatically substituted for Shanahan. The current Acting Secretary of Homeland Security, Kevin K. McAleenan, has been automatically substituted for Nielsen.
18

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee1199oof f110055
policies aimed at improving the quality of life in border communities, including border enforcement and immigration reform policies.
Plaintiffs’ operative Complaint alleges that Defendants exceeded the scope of their constitutional and statutory authority by spending money in excess of what Congress allocated for border security; that Defendants’ actions violated separation of powers principles as well as the Appropriations Clause and Presentment Clause of the Constitution; and that Defendants failed to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Plaintiffs also allege that Defendants are acting ultra vires (without authority) in seeking to divert funding without statutory authority to do so.
Plaintiffs allege that Defendants’ use of the reprogrammed funds would injure their members because the noise of construction, additional personnel, visual blight, and negative ecological effects that would accompany a border barrier and its construction would detract from their ability to hike, fish, enjoy the desert landscapes, and observe and study a diverse range of wildlife in areas near the U.S.-Mexico border. Plaintiffs also allege that they participated in the legislative process by “devot[ing] substantial staff and other resources towards legislative advocacy leading up to the appropriations bill passed by Congress in February 2019, specifically directed towards securing Congress’s denial of substantial funding to the border wall.” The Complaint requests declaratory and permanent
19

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2200oof f110055
injunctive relief to prevent construction of the border barrier using the funding at issue in the lawsuit.
On April 4, Plaintiffs filed a motion for a preliminary injunction, asking the district court to enter a “preliminary injunction prohibiting Defendants and all persons associated with them from taking action to build a border wall using funds or resources from the Defense Department; and specifically enjoining construction of the wall segments in the . . . ‘Yuma Sector Projects 1 and 2 and El Paso Sector Project 1 [areas].’” In particular, Plaintiffs moved to enjoin Defendants from using DoD’s reprogramming authority in section 8005 to transfer funds from Army personnel into the counterdrug appropriations line, from subsequently using section 284 to divert those funds from DoD’s counterdrug appropriations line to be used by DHS for border barrier construction, from invoking section 2808 to divert funds appropriated to military construction projects, and from taking any further action before complying with NEPA’s procedural requirements. Plaintiffs argued that a preliminary injunction was necessary because Defendants had already diverted funds, and that Plaintiffs would be irreparably harmed if Defendants proceeded with their threatened construction during the pendency of the district court proceedings. After receiving briefing from both sides, the district court held a multiple-hour hearing on May 17, 2019.
20

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2211oof f110055
On May 24, the district court issued an order granting the motion in part and denying it in part. Sierra Club v. Trump, No. 4:19-cv-00892-HSG, 2019 WL 2247689 (N.D. Cal. May 24, 2019). After concluding that Plaintiffs had standing to bring their challenge, the district court held that Plaintiffs were entitled to a preliminary injunction with respect to the section 8005 reprogramming authority because they would likely succeed in arguing that Defendants acted ultra vires, they had demonstrated that they would be irreparably harmed, and the balance of equities weighed in their favor. Id. at *13-23, *27-28, *29. The court declined to rule on Plaintiffs’ likelihood of success on their section 2808 arguments, however, because Defendants had not yet disclosed a plan for diverting funds under that authority. Id. at *25, *28-29. Finally, the court concluded that Plaintiffs were unlikely to succeed on their NEPA argument. Id. at *26. It accordingly granted the following preliminary injunction:
Defendants Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.
21

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2222oof f110055
Id. at 30.9
Defendants filed a motion in the district court to stay the preliminary
injunction pending appeal. The district court denied that motion, concluding that
Defendants were unlikely to prevail on the merits and that the “request to proceed
immediately with the enjoined construction would not preserve the status quo” but
rather would “effectively moot [Plaintiffs’] claims.” Sierra Club v. Trump, No.
4:19-cv-00892-HSG, 2019 WL 2305341, at *1 (N.D. Cal. May 30, 2019).
On June 3, 2019, Defendants filed an emergency motion with this court
requesting a stay pending appeal. Defendants implored our court to act as quickly
as possible because they were incurring daily fees and penalties from contractors
due to the suspension of construction and because, if the injunction remained in
place, Defendants would need to begin the process of reprogramming the funds
again by the end of June or else face the risk of being deprived of the use of those funds entirely.10
9 The district court simultaneously denied the motion for a preliminary injunction in the related case brought by states, explaining that there was no likelihood of irreparable injury once it had granted the injunction in the Sierra Club case. See State v. Trump, No. 4:19-cv-00872-HSG, 2019 WL 2247814, at *17 (N.D. Cal. May 24, 2019).
10 We note that Defendants did not file any motion to expedite the appeal itself, and as explained below, actually filed a motion to delay the expedited briefing schedule our court had issued for the preliminary injunction appeal, asking us to let the parties wait until after further anticipated decisions in the district court and our court’s decision on their stay motion to propose a new briefing schedule that could govern “any” full appeal.
22

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2233oof f110055
Initial briefing on the stay motion was completed on June 14, and we heard oral argument on June 20. On June 24, we requested supplemental briefing from the parties on issues that arose during oral argument but that had not been briefed. That briefing was completed on June 28.
Meanwhile, proceedings continued in the district court. On May 29, Plaintiffs filed a motion for a supplemental preliminary injunction to block the additional planned construction in California and Arizona using funds reprogrammed under sections 8005 and 9002 of the Department of Defense Appropriations Act of 2019, as well as section 1512 of the 2019 NDAA. Plaintiffs acknowledged that the motion “present[ed] virtually identical legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch’s lawful authority” to the ones that the court had decided in its May 24 order granting in part Plaintiffs’ motion for a preliminary injunction. On June 12, 2019, Plaintiffs moved for partial summary judgment, seeking a permanent injunction based on the same arguments made in their initial and supplemental motions for a preliminary injunction. Defendants cross-moved for summary judgment, resting on the same arguments they had made against the preliminary injunction. Briefing on those motions was completed on June 24.
On June 28, the district court issued an order granting in part and denying in part Plaintiffs’ motion for partial summary judgment, and denying Defendants’
23

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2244oof f110055
cross-motion for partial summary judgment. Sierra Club v. Trump, No.
4:19-cv-00892-HSG, 2019 WL 2715422 (N.D. Cal. June 28, 2019). In that order,
the court issued a permanent injunction prohibiting Defendants from using
reprogrammed funds to construct a border barrier in the El Paso and Yuma Sectors
(the subject of the initial preliminary injunction) as well as the more recently-
announced El Centro and Tucson Sector areas (the subject of the motion for a supplemental preliminary injunction).11 Id. at *6. The district court concluded that
Plaintiffs’ legal challenge was meritorious, that Plaintiffs had shown that they
would suffer irreparable harm absent a permanent injunction, and that the balance
of hardships and the public interest supported a permanent injunction. Id. at *4-5.
The court heeded Defendants’ request to certify the judgment for immediate
11 The terms of the permanent injunction are identical to those of the preliminary injunction, but it also covers funds reprogrammed under sections 8005 and 9002 for construction in the El Centro and Tucson sectors. In full, the permanent injunction states:
Defendants Mark T. Esper, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1–3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019. Sierra Club, 2019 WL 2715422, at *6.
24

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2255oof f110055
appeal, see Fed. R. Civ. P. 54(b), and it denied Defendants’ request to stay the injunction pending appeal. Id. at *5-6.
Defendants filed an immediate notice of appeal from that decision. At Defendants’ request, we consolidated their new appeal with the pending appeal of the preliminary injunction. Defendants now seek a stay of the permanent injunction pending appeal, resting on the same arguments they made about the preliminary injunction because the underlying legal questions are identical.
II. Issues Not Before the Court Before turning to the merits, we highlight what is not at issue in this appeal. First, Defendants at oral argument acknowledged that they are “not challenging [Article III] standing for purposes of the stay motion.” Thus, Defendants do not dispute that Plaintiffs have suffered an “actual or imminent,” “concrete and particularized,” “injury in fact” that is “fairly traceable” to Defendants’ actions and that will “likely” be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and alterations omitted); Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). We have satisfied ourselves that Defendants’ assessment is correct. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (discussing a court’s sua sponte obligation to assure itself that it has jurisdiction before proceeding to the merits). Plaintiffs have alleged enough to satisfy the requirements for standing
25

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2266oof f110055
under Article III at this stage of the litigation. Id. at 181-83 (holding that the plaintiffs’ injuries from environmental harm were sufficient for standing).
Second, although Defendants may have access to other funding sources to build a border barrier, the only source at issue in this stay motion is section 8005 reprogramming.12 The district court’s preliminary injunction order discussed various other potential sources, including the Treasury Forfeiture Fund and money reallocated after a national emergency declaration for “military construction projects” under section 2808. Sierra Club v. Trump, No. 4:19-cv-00892-HSG, 2019 WL 2247689, at *11 (N.D. Cal. May 24, 2019). The injunction, however, only concerns section 8005 reprogramming for border barrier construction in Yuma Sector Project 1, El Paso Sector 1, El Centro Sector 1, and Tucson Sectors 1-3. We have not been asked to expand the scope of the injunction, and the parties have not addressed in this stay motion any non-section 8005 funding sources. Accordingly, our decision does not address any sources of funds Defendants might use to build a border barrier except those reprogrammed under section 8005.
Third, as the district court observed in the preliminary injunction order, The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not
12 As noted above, the parties do not contest that the related reprogramming provisions—section 9002 of the Department of Defense Appropriations Act of 2019 and section 1512 of the NDAA—are subject to section 8005’s requirements. We accordingly refer to these requirements collectively by reference to section 8005.
26

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2277oof f110055
about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. These policy questions are the subject of extensive, and often intense, differences of opinion, and this Court cannot and does not express any view as to them. Sierra Club, 2019 WL 2247689, at *1. Our consideration is limited to legal questions regarding the authority of the Executive Branch under the Constitution and under statutes enacted into law by Congress.
III. Justiciability Defendants have not argued that jurisdiction over this action is lacking. Nor have they asserted that Plaintiffs’ challenge to the section 8005 reprogramming presents a nonjusticiable “political question.” They have contended, however, that “[t]he real separation-of-powers concern is the district court’s intrusion into the budgeting process,” which “is between the Legislative and Executive Branches— not the judiciary.” We consider, therefore, whether it is appropriate for the courts to entertain Plaintiffs’ action in the first place. We conclude that it is. “Cases” and “controversies” that contain “a textually demonstrable constitutional commitment of the issue to a coordinate political department,” Baker v. Carr, 369 U.S. 186, 217 (1962), or “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986), present a “narrow exception” to our responsibility to
27

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2288oof f110055
decide cases properly before us, Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012).
Nowhere does the Constitution grant Congress the exclusive ability to determine whether the Executive Branch has violated the Appropriations Clause. See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 425 (1990). Nor does the Constitution leave the Executive Branch to police itself. Rather, the judiciary “appropriately exercises” its constitutional function “where the question is whether Congress or the Executive is ‘aggrandizing its power at the expense of another branch.’” Zivotofsky, 566 U.S. at 197 (quoting Freytag v. Comm’r, 501 U.S. 868, 878 (1991)).
The current action does not ask us to decide whether the projects for which Defendants seek to reprogram funds are worthy or whether, as a policy judgment, funds should be spent on them. Instead, we are asked whether the reprogramming of funds is consistent with the Appropriations Clause and section 8005. That “is a familiar judicial exercise.” Id. at 196.
Chief Justice Marshall’s answer to “whether the legality of an act of the head of a department be examinable in a court of justice” or “only politically examinable” remains the same: “[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, . . . the individual who considers himself injured, has a right to resort to the laws of his country for a
28

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee2299oof f110055
remedy.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 (1803). Pursuant to its exclusive power of appropriation, Congress imposed on the Executive Branch a duty—contained in section 8005—not to transfer funds unless certain circumstances were present. As discussed above, see supra Section II, Defendants have not disputed that Plaintiffs have sufficiently alleged injuries that satisfy Article III’s standing requirement to enable them to pursue this action. Although “our decision may have significant political overtones,” Japan Whaling Ass’n, 478 U.S. at 230, “courts cannot avoid their responsibility merely ‘because the issues have political implications,’” Zivotofsky, 566 U.S. at 196 (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). In sum, it is appropriate for this action to proceed in federal court.
IV. Stay Standards We decide whether to issue a stay by considering four factors, reiterated by the Supreme Court in Nken v. Holder, 556 U.S. 418 (2009): (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors “are the most critical,” and we only reach the last two “[o]nce an applicant satisfies the first two factors.” Id. at 434-35.
29

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3300oof f110055
The requirement that an applicant for a stay make a “strong showing” may be explained at least in part by the fact that “[a] stay is not a matter of right, even if irreparable injury might otherwise result.” Id. at 433 (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). Indeed, “[a] stay is an intrusion into the ordinary processes of administration and judicial review.” Id. at 427 (quotation marks omitted). Issuing a stay is therefore “an exercise of judicial discretion” not to be issued “reflexively,” but rather based on the circumstances of the particular case. Id. at 427, 433. “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34. Here, Defendants carry those burdens because it is Defendants who have sought a stay.
That being said, the unusual circumstances of this case complicate our typically restrained approach to assessing the merits in this procedural posture. When deciding whether to issue a stay, we usually speak about the merits in probabilistic “likelihood” terms, in part because we recognize that the “ordinary processes of administration and judicial review” best ensure “careful review and a meaningful decision.” Id. at 427 (quotation marks omitted). Particularly given a recent increase in emergency petitions asking for injunctive relief or stays of injunctive relief, we think it is especially important for courts to strive to follow the traditional process of judicial review. Otherwise, we are forced to decide “justice on the fly.” Id.
30

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3311oof f110055
Here, however, both sides contend that we must evaluate the merits of this case now to preserve their interests—both agree that there is no time for the “ordinary” course of appellate review.13 As Defendants represented in their briefing and again at oral argument, if the injunction remains in place, DoD’s authority to spend the remaining challenged funds on border barrier construction, or to redirect them for other purposes, will lapse. At the same time, as the district court noted, allowing Defendants to move forward with spending the funds will allow construction to begin, causing immediate, and likely irreparable, harm to Plaintiffs. Sierra Club v. Trump, No. 4:19-cv-00892-HSG, 2019 WL 2247689, at *27-28 (N.D. Cal. May 24, 2019). In either scenario, many of the issues in this case may become moot or largely moot before fuller litigation of the appeal can be completed. Accordingly, we proceed to evaluate the merits more fully than we otherwise might in response to a stay request.14
13 The dissent suggests that we should not be analyzing the merits at this stage because there will be a fuller appeal later. Dissent at 2 n.1. That argument depends on disbelieving Defendants’ assertions that the Executive Branch will lose its ability to spend the reprogrammed money by the beginning of July, if not earlier. To the extent Defendants’ representations about their imminent injury are not credible, Defendants certainly do not deserve the equitable relief of a stay.
14 In an appeal from a district court’s grant of a permanent injunction, we may “affirm the district court on any ground supported by the record.” Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 608 (9th Cir. 2000) (quoting Charley’s Taxi Radio Dispatch Corp. v. SIDA of Haw., Inc., 810 F.2d 869, 874 (9th Cir. 1987)). Evaluating whether Defendants have a likelihood of
31

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3322oof f110055
V. Likelihood of Success on the Merits In their operative Complaint, Plaintiffs framed their claim in various ways. Plaintiffs asserted constitutional claims based on violations of separation of powers principles, the Appropriations Clause, and the Presentment Clause; a claim that Defendants acted ultra vires; and a statutory claim under the Consolidated Appropriations Act of 2019.15 Because we conclude that Plaintiffs’ claim is, at its core, one alleging a constitutional violation, we focus on that issue. More than one legal doctrine offers Plaintiffs a cause of action to raise that claim, and Plaintiffs’ success under each depends on whether Defendants’ actions indeed violate the Constitution.
A. Plaintiffs’ Constitutional Claim The Constitution’s Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. In addition to safeguarding “the public treasure, the common fund of all,” and providing “a most useful and salutary check upon . . . corrupt influence and public peculation,” it ensures that the “the executive [does not] possess an unbounded power over the public purse of the nation.” 3 Joseph
success on appeal therefore requires assessing whether there are clear grounds for affirmance supported by the record.
15 Plaintiffs also separately asserted a NEPA claim. The parties have not made any arguments about the NEPA claim in these stay proceedings, so we do not address it.
32

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3333oof f110055
Story, Commentaries on the Constitution of the United States § 1342 (Boston, Hilliard, Gray & Co. ed. 1833).
This approach to the power of the purse comported with the Founders’ “declared purpose of separating and dividing the powers of government,” namely “to ‘diffus[e] power the better to secure liberty.’” Bowsher v. Synar, 478 U.S. 714, 721 (1986) (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)); see also INS v. Chadha, 462 U.S. 919, 949-50 (1983) (collecting sources and explaining the Founders’ belief in “the need to divide and disperse power in order to protect liberty”). In response to critiques that his proposed Constitution would dangerously concentrate power in a single central government, James Madison argued that the risk of abuse of such power was low because “the sword and purse are not to be given to the same member” of the government. 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 393 (Jonathan Elliot ed., 2d ed. 1836). Instead, Madison explained that “[t]he purse is in the hands of the representatives of the people,” who “have the appropriation of all moneys.” Id.
Plaintiffs’ principal legal theory is that Defendants seek to spend funds for a different purpose than that for which Congress appropriated them, thereby
33

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3344oof f110055
violating the Appropriations Clause.16 Defendants’ defense to this claim is that, through section 8005, Congress allowed Defendants to make this reallocation. If Defendants were correct that section 8005 allowed this spending reallocation, Plaintiffs’ claim would fail, because the spending would be consistent with Congress’s appropriation legislation. If section 8005 does not authorize the reallocation, however, then Defendants are acting outside of any statutory appropriation and are therefore spending funds contrary to Congress’s appropriations decisions. We believe Plaintiffs are correct that there is no statutory appropriation for the expenditures that are the subject of the injunction. Reprogramming and spending those funds therefore violates the Appropriations Clause.
1. Section 8005’s Meaning Defendants argue that they are likely to prevail on appeal because Congress has authorized DoD to reprogram funds, the planned use of funds is consistent with that reprogramming authorization, and this spending is therefore authorized by an appropriation from Congress as the Appropriations Clause requires. We disagree.
16 Throughout this litigation, Plaintiffs’ claim has been framed in various ways. The lack of compliance with section 8005 has sometimes been labeled ultra vires as outside statutory authority or as outside the President’s Article II powers, and spending without an appropriation has been described as a violation of the Appropriations Clause. However their claim is labeled, Plaintiffs’ theory is ultimately the same.
34

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3355oof f110055
DoD’s proposed expenditures are not authorized by the applicable reprogramming
statute. They therefore are not “in Consequence of Appropriations made by Law.”
U.S. Const. art. I, § 9, cl. 7.
At bottom, this constitutional issue turns on a question of statutory
interpretation. Section 8005 of the Department of Defense Appropriations Act of
2019 provides that the Secretary of Defense may reprogram funds for certain
military functions other than those for which they were initially appropriated, but it
limits the Secretary’s ability to do so to a narrow set of circumstances. Pub. L. No.
115-245, § 8005, 132 Stat. 2981, 2999 (2018).17 Transferred funds must address
17 Section 8005 provides, in relevant part:
Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes, and for the same time period, as the appropriation or fund to which transferred: Provided, That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress . . . Provided further, That no part of the funds in this Act shall be available to prepare or present a request to the Committees on Appropriations for reprogramming of funds, unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in
35

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3366oof f110055
“higher priority items, based on unforeseen military requirements, than those for which originally appropriated.” Id. And “in no case” may the Secretary use the funds “where the item for which reprogramming is requested has been denied by the Congress.” Id. We conclude, as Plaintiffs argue, that those requirements are not satisfied.
i. “Unforeseen” Plaintiffs argue that the President’s repeated and unsuccessful requests for more border barrier funding make the request here obviously not unforeseen. Defendants assert in response, without citation, that “[a]n expenditure is ‘unforeseen’ . . . if DoD was not aware of the specific need when it made its budgeting requests.” Defendants contend that DoD could not have foreseen the “need to provide support” to DHS for border barrier construction in the relevant sectors when it made its budget requests for 2019, before DHS’s own budget was even finalized. Defendants mistakenly focus on the assertion that DoD “could not have anticipated that DHS would request specific support for roads, fences, and lighting.” Even assuming that is true, the fact remains that DHS came to DoD for funds because Congress refused to grant DHS itself those funds. And when
no case where the item for which reprogramming is requested has been denied by the Congress.
36

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3377oof f110055
properly viewed as applying to the broader “requirement” of a border wall, not to DHS’s specific need to turn to an entity other than Congress for funds, it is not credible that DoD did not foresee this requirement. The long history of the President’s efforts to build a border barrier and of Congress’s refusing to appropriate the funds he requested makes it implausible that this need was unforeseen.
ii. “Denied by the Congress” Even if there could be doubt about how to interpret “unforeseen,” it is clear that Congress denied this request. Because each of section 8005’s conditions must be satisfied for DoD’s reprogramming and spending to be constitutionally permissible, this conclusion alone undermines Defendants’ likelihood of success on the merits on appeal. Defendants urge that “an ‘item for which funds are requested’” refers to “a particular budget item” for section 8005 purposes, so “Congress’s decisions with respect to DHS’s more general request for border-wall funding [are] irrelevant.” But this interpretation, which would require that a specific funding request be explicitly rejected by Congress, is not compatible with the plain text of section 8005. First, the statute refers to “item[s] . . . denied by the Congress,” not to funding requests denied by the Congress, suggesting that the inquiry centers on what DoD wishes to spend the funds on, not on the form in which Congress
37

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3388oof f110055
considered whether to permit such spending. Second, Defendants give the term “denied” a meaning other than its “ordinary, contemporary, and common” one. United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). In common usage, a general denial of something requested can, and in this case does, encompass more specific or narrower forms of that request. To illustrate, if someone offered a new job asks her potential future employer for a larger compensation package than was included in the job offer and the request is denied, she has been denied a five percent higher salary even if her request did not specifically ask for that amount.
As the district court noted, Defendants’ reading of section 8005 also would produce the perverse result that DoD could, by declining to present Congress with a particular line item to deny, reprogram funds for a purpose that Congress refused to grant another agency elsewhere in the budgeting process.18 In other words, it would simply invite creative repackaging. But putting a gift in different wrapping paper does not change the gift. Identifying the request to Congress as having come previously from DHS instead of from DoD does not change what funding was requested for: a wall along the southern border.
Construing section 8005 with an eye towards the ordinary and common-sense meaning of “denied,” real-world events in the months and years
18 That result would hardly comport with Congress’s stated desire in drafting the language currently in section 8005 “to tighten congressional control of the reprogramming process.” H.R. Rep. No. 93-662, at 16 (1973).
38

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee3399oof f110055
leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority. Long before the emergency declaration and DoD’s reprogramming at issue here, the President made plain his desire to construct a border barrier, requesting $5.7 billion from Congress to do so. Throughout 2018, Congress considered multiple bills that would have supported construction of such a barrier; it passed none of them. See supra Section I.
That DoD never specifically requested from Congress the specific sums at issue here for the specific purpose of counterdrug funding at the southern border (and that Congress therefore never had cause to deny that specific request) is of no moment. The amount to be appropriated for a border barrier occupied center stage of the budgeting process for months, culminating in a prolonged government shutdown that both the Legislative and Executive Branches clearly understood as hinging on whether Congress would accede to the President’s request for $5.7 billion to build a border barrier.
In sum, Congress considered the “item” at issue here—a physical barrier along the entire southern border, including in the Yuma, El Paso, Tucson, and El Centro sectors—and decided in a transparent process subject to great public scrutiny to appropriate less than the total amount the President had sought for that item. To call that anything but a “denial” is not credible.
39

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4400oof f110055
2. Defendants’ Interpretation and Agency Deference Defendants did not argue in their briefing to the district court, their stay motion, or their supplemental briefing that their contrary interpretation of section 8005 is entitled to agency deference. Even setting aside whether Defendants’ failure to raise such an argument may operate as a waiver or forfeiture, we conclude that their position is unworthy of deference when evaluated under traditional standards for reviewing agency action. Under the two-step framework articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), a reviewing court will often defer to an agency’s interpretation of an ambiguous statute administered by the agency. Id. at 843. To determine whether the Chevron framework governs at all, however, there is a threshold “step zero” inquiry in which we ask whether “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and [whether] the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). “Delegation of such authority may be shown in a variety of ways, [such] as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.” Id. at 227. And to evaluate whether the agency exercised its authority, we look to “the interpretive method used and the nature of
40

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4411oof f110055
the question at issue,” considerations that may include “the interstitial nature of the legal question, the related expertise of the [a]gency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the [a]gency has given the question over a long period of time.” Barnhart v. Walton, 535 U.S. 212, 222 (2002). If we determine that (1) Congress did not intend to delegate interpretive authority to the agency, or (2) that the agency did not take the challenged action in exercise of that authority, we defer to the agency only to the extent that the agency’s reasoning is persuasive. Mead, 533 U.S. at 234 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
Under this framework, DoD’s current interpretation of section 8005 is not entitled to deference. First, it does not appear that Congress intended to delegate to DoD the power to interpret section 8005. DoD’s authorizing and appropriating statutes do not contain an explicit grant of rulemaking power to the agency. Section 8005 could suggest a potential congressional intent to delegate to DoD the authority to interpret the phrase “higher priority items, based on unforeseen military requirements,” because these are subjects about which DoD has expertise. But the same is not true of the “denied by the Congress” limitation, given that DoD has no clear expertise in assessing what “denied by the Congress” might mean. Moreover, as discussed above, Congress’s intent in inserting the “denied by the
41

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4422oof f110055
Congress” limitation in the first place was to tighten the fiscal reins and retain congressional control over the appropriations process. See supra n.18.
Second, the agency has not advanced its interpretation in a manner that would typically trigger review under Chevron. There is no question that DoD did not conduct notice-and-comment rulemaking or other formalized procedures in interpreting section 8005. See Mead, 533 U.S. at 230 (“[T]he overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.”). Nor were there any other features in DoD’s interpretive process here that might otherwise justify Chevron deference. See Barnhart, 535 U.S. at 222. There is no indication that DoD’s decision was the product of “careful consideration . . . over a long period of time” or any other procedural rigor that would more closely approximate a formal rulemaking. Id. On the contrary, DoD’s interpretation appears to have emerged in a matter of weeks. And to the extent that DoD has mustered further support for its interpretation during this litigation, that litigating position is not entitled to Chevron deference. Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 830 (9th Cir. 2012) (en banc) (“Without a basis in agency regulations or other binding agency interpretations, there is usually no justification for attributing to an agency litigating position ‘the force of law.’” (quoting Mead, 533 U.S. at 227)).
42

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4433oof f110055
Accordingly, we conclude that Chevron deference to DoD’s interpretation of section 8005 is not warranted.
An agency action not entitled to Chevron deference may nevertheless carry persuasive weight based on the factors that the Supreme Court enumerated in Skidmore, 323 U.S. at 140. See Mead, 533 U.S. at 234-35. Under Skidmore, we look to “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” 323 U.S. at 140.
DoD’s interpretation of section 8005 does not warrant deference under Skidmore’s standards either. The two documents in the record that appear to contain DoD’s analysis of the section 8005 requirements—the official reprogramming action and a related memorandum to DoD’s comptroller—are entirely conclusory. The reprogramming action merely parrots the statute without analysis:
This reprogramming action provides funding in support of higher priority items, based on unforeseen military requirements, than those for which originally appropriated; and is determined to be necessary in the national interest. It meets all administrative and legal requirements, and none of the items has previously been denied by the Congress. The memorandum contains little more, stating that “[t]he need to provide support . . . was . . . not known at the time of the [Fiscal Year] 2019 budget request” and that Congress had not denied funding for the items. The Supreme
43

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4444oof f110055
Court has found unpersuasive under Skidmore agency determinations containing far more reasoning than that which we confront here. See Gonzales v. Oregon, 546 U.S. 243, 253-54 (2006) (rejecting as unpersuasive under Skidmore an interpretive rule announced by the Attorney General that “[i]ncorporat[ed] the legal analysis of a memorandum he had solicited from his Office of Legal Counsel”); Christensen v. Harris County, 529 U.S. 576, 581, 587 (2000) (rejecting as unpersuasive under Skidmore an interpretation in an opinion letter containing brief textual analysis and citation to operative regulations).
Defendants’ interpretation also fails to rest on the sort of expertise that might inspire deference. See Gonzales, 546 U.S. at 269 (“[Skidmore] deference here is tempered by the Attorney General’s lack of expertise in this area.”); cf. Kisor v. Wilkie, No. 18-15, 2019 WL 2605554, at *9 (U.S. June 26, 2019) (explaining that when an agency interprets its own regulation, its “interpretation must in some way implicate its substantive expertise” to be entitled to deference); compare Mead, 533 U.S. at 235 (“There is room at least to raise a Skidmore claim here, where . . . [the agency] can bring the benefit of specialized experience to bear on the subtle questions in this case.”).
* * * Without section 8005’s statutory authorization to reprogram funds for section 284 security measures, no congressional action permits Defendants to use
44

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4455oof f110055
those funds to construct border barriers. “The President’s power . . . must stem
either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to [act] as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.” Youngstown, 343 U.S. at 585. Defendants’ attempt to reprogram and spend these funds therefore violates the Appropriations Clause and intrudes on Congress’s exclusive power of the purse, for it would cause funds to be “drawn from the Treasury” not “in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
B. Whether Plaintiffs Have a Cause of Action Defendants argue that none of the foregoing analysis matters because Plaintiffs lack a cause of action to challenge the reprogramming of funds at issue here. We disagree. Plaintiffs may bring their challenge through an equitable action to enjoin unconstitutional official conduct, or under the judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is alleged to violate the Constitution, or both. Either way, Plaintiffs have an avenue for seeking relief.
1. Equitable Cause of Action The Supreme Court has “long held that federal courts may in some circumstances grant injunctive relief against” federal officials violating federal
45

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4466oof f110055
law. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[I]njunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”). “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong, 135 S. Ct. at 1384; see also Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318-19 (1999) (“[T]he substantive prerequisites for obtaining an equitable remedy as well as the general availability of injunctive relief . . . depend on traditional principles of equity jurisdiction.” (quoting 11A Charles Alan Wright et al., Federal Practice and Procedure § 2941, at 31 (2d ed. 1995)).
In Youngstown, for example, the Supreme Court heard a challenge to a wartime presidential order directing the Secretary of Commerce to seize and operate a majority of the nation’s steel mills. 343 U.S. at 582. Acting pursuant to the presidential order, the Secretary of Commerce issued possessory orders that required the seized companies to operate according to the Secretary’s direction. Id. at 583. The plaintiff steel mill owners challenged the order as amounting to lawmaking, a function that “the Constitution has expressly confided to the Congress and not to the President.” Id. at 582. The President contended that his order was “necessary to avert a national catastrophe.” Id. In addressing the
46

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4477oof f110055
dispute, the Court held that there was no statute that authorized the order, and that “[t]he order [could not] properly be sustained as an exercise of the President’s military power,” or any other constitutional grant of power to the President. Id. at 587. The Court therefore held that “th[e] seizure order [could not] stand.” Id. at 589.
More recently, in Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court heard a challenge to a presidential proclamation restricting the entry of certain foreign nationals into the United States on the ground that it violated the Establishment Clause of the First Amendment. Id. at 2403. Plaintiffs were individuals who alleged that they were injured by being separated from relatives barred from entering the country. Id. at 2416. Without discussing whether a cause of action existed to challenge the alleged constitutional violation, the Court reached the merits of the plaintiffs’ Establishment Clause claim. See id. at 2416-17. The government had contended that the plaintiffs’ claims were not justiciable because the Establishment Clause did not give them a legally protected interest in the admission of particular foreign nationals, but the Court rejected this argument and proceeded to evaluate the merits of the plaintiffs’ claim. Id. at 2416. Trump v. Hawaii and Youngstown therefore support the conclusion that Plaintiffs may seek equitable relief to remedy an alleged constitutional violation.
47

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4488oof f110055
Consistent with these cases, our court allowed an equitable action to enforce the Appropriations Clause in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). In McIntosh, appellants were criminal defendants who had been federally indicted on marijuana-related offenses. Id. at 1168-69. They sought to enjoin their prosecutions, claiming that a congressional appropriations rider prohibited the Department of Justice (“DOJ”) from spending money on their prosecutions because their marijuana-related activities were licensed under state law. Id. at 1169, 1177. We held that the defendant-appellants could properly “enjoin their prosecutions on the grounds that [DOJ] [was] prohibited from spending funds to prosecute them” if they could demonstrate that their conduct was authorized by state law and thus fell within what the appropriations rider was enacted to protect. Id. at 1169, 1174. As we explained: “Congress has enacted an appropriations rider that specifically restricts DOJ from spending money to pursue certain activities,” and it had acted within its “‘exclusive province’” in doing so. Id. at 1172 (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)). Once Congress has so acted, “it is for . . . the courts to enforce” its decisions. Id. (quoting Tenn. Valley Auth., 437 U.S. at 194). Contrary to the dissent’s characterization, we did not in McIntosh treat the alleged constitutional violation only “as a defense for criminal
defendants.” Dissent at 21. Instead we held that “Appellants . . . can seek—and
48

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee4499oof f110055
have sought—to enjoin [an agency] from spending funds” contrary to Congress’s restrictions. McIntosh, 833 F.3d at 1172.
Relying on Dalton v. Specter, 511 U.S. 462 (1994), Defendants argue that there cannot be a constitutional cause of action here. Dalton involved a challenge to the President’s discretionary decision to agree to a specific military base closure included in a base closure package proposed by an independent commission pursuant to the Defense Base Closure and Realignment Act of 1990 (“DBCRA”). Id. at 464-66. The Supreme Court held that the plaintiff’s statutory challenge to the President’s decision failed because the statute gave the President unfettered discretion. Id. at 474-76. The Court then also rejected the argument that because the President had allegedly violated the statute, he had acted unconstitutionally. Id. at 472-74. In explanation, the Court stated that “every action by the President, or by another executive official, in excess of his statutory authority is [not] ipso facto in violation of the Constitution.” Id. at 472. The Court did not say, however, that action in excess of statutory authority can never violate the Constitution or give rise to a constitutional claim. Statutory and constitutional claims are not mutually exclusive. Indeed, the Court went on in Dalton to state that Youngstown “cannot be read for the proposition that an action taken by the President in excess of his statutory authority necessarily violates the Constitution.” Id. at 473 (emphasis
49

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5500oof f110055
added). There would have been no reason for the Court to include the word “necessarily” if the two claims were always mutually exclusive.
In Dalton, the President’s authority was put at issue because of the contention that he had violated requirements set by DBCRA. It was only because Congress had enacted a statutory process for closing bases that the Court considered whether it could review the President’s compliance with DBCRA and ultimately concluded that it could not because the statute gave the President unreviewable discretion. Id. at 474-76. It was in that context that the Court explained that an allegation that the President had not complied with the statute would not necessarily become a constitutional claim through an ultra vires theory. Id. at 472-73. Because DBCRA authorized unfettered discretion by the President to either approve or disapprove the package of base closures as a whole, the Court had no occasion to consider the constitutional implications of violating statutes, such as section 8005, that authorize executive action contingent on satisfaction of certain requirements.19 Here, unlike in Dalton, Plaintiffs’ claim is not one “simply alleging that the President has exceeded his statutory authority.” Id. at 473
19 The dissent notes that when Congress appropriates funds in lump-sum amounts, and leaves it to the unfettered discretion of the agency to re-allocate funds, no judicial review is available. Dissent at 8 (citing Lincoln v. Vigil, 508 U.S. 182, 193 (1993)). That principle has no bearing here. Section 8005 does not involve a lump sum whose allocation is committed to the agency’s discretion, but instead imposes restrictions on when and for what purposes the agency may use reprogrammed funds.
50

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5511oof f110055
(emphasis added). Rather, Plaintiffs claim that to the extent Defendants did not
have statutory authority to reprogram the funds, they acted in violation of
constitutional separation of powers principles because Defendants lack any
background constitutional authority to appropriate funds—making Plaintiffs’ claim
fundamentally a constitutional one.20 Dalton therefore does not foreclose
Plaintiffs’ constitutional claim here.21
20 Defendants rely on Harrington v. Schlesinger, 528 F.2d 455 (4th Cir. 1975), in which the Fourth Circuit held that the claims of several individual taxpayers who alleged that the government was spending money in violation of two statutes did not satisfy the test for taxpayer standing enunciated in Flast v. Cohen, 392 U.S. 83 (1968), because they “present[ed] no constitutional challenge to any congressional appropriation,” Harrington, 528 F.2d at 457. Harrington is largely inapposite, because Plaintiffs do not rely on taxpayer standing here. The court in Harrington noted, however, that “[i]f there were a clear and flagrant violation of congressional limitations upon expenditures, a court in a taxpayer suit might find its intervention appropriate.” Id. at 458. Thus, if Harrington has any persuasive value here, we think it is in suggesting that Plaintiffs do have a cause of action because, as we have discussed, there has been a clear violation of Congress’ limits on expenditures.
21 The dissent suggests that Train v. City of New York, 420 U.S. 35 (1975), supports the proposition that a claim attacking the Executive Branch’s reading of an appropriations statute sounds only in that statute and not in the Constitution. Dissent at 8-9. But the plaintiffs in Train argued not that the Executive Branch was spending money that Congress had never appropriated, rather that the Executive Branch was refusing to allot money Congress had specifically instructed it to spend. 420 U.S. at 42. There was thus no constitutional claim at issue in Train, and if there had been, it would have had nothing to do with the prohibitions on unauthorized spending imposed by the Appropriations Clause. The Supreme Court in Train considered only the statutory question whether an Executive Branch agency had failed to comply with a specific statutory mandate because that was the only issue in that case, not because the existence of a statute had any bearing on constitutional reviewability.
51

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5522oof f110055
Defendants also cannot be right in their apparent contention that as long as an official identifies some statutory authorization for his actions, doing so makes any challenge to those actions statutory and precludes constitutional review. It cannot be that simply by pointing to any statute, governmental defendants can foreclose a constitutional claim. At the risk of sounding tautological, only if the statute actually permits the action can it even possibly give authority for that action.22 For the reasons explained above, section 8005 does not permit the action here.
Congress may, of course, limit a court’s equitable power to enjoin acts violating federal law. See Armstrong, 135 S. Ct. at 1385 (explaining that an equitable remedy is not available where Congress has demonstrated an “intent to foreclose” that form of relief, as where a statutory provision (1) expressly provided a method of enforcing a substantive right, or (2) lacked a judicially administrable standard (quoting Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 647 (2002))). But Defendants do not argue that Congress has demonstrated any
22 Although in Youngstown the President conceded that no statute authorized his actions, and relied only on his Article II powers, 343 U.S. at 587, we do not see how Defendants’ willingness or unwillingness to concede that a particular statute does not authorize their actions should affect whether Plaintiffs in this case have a cause of action—particularly when, as we have discussed, we think it quite clear that section 8005 does not authorize the reprogramming. Thus, we do not think that the concession in Youngstown was determinative, or that the lack of a concession is determinative here.
52

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5533oof f110055
such intent to limit equitable remedies here, and we have identified no statute that does so. Indeed, to foreclose a remedy for a constitutional violation, Congress must demonstrate its intent by “clear and convincing evidence.” Weinberger v. Salfi, 422 U.S. 749, 762 (1975) (quoting Johnson v. Robinson, 415 U.S. 361, 373 (1974)); see also City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 183 (1997) (“[J]udicial review of [federal] administrative action is the rule, and nonreviewability an exception which must be demonstrated.” (alterations in original) (quoting Barlow v. Collins, 397 U.S. 159, 166 (1970)).
2. Administrative Procedure Act Cause of Action Plaintiffs’ claim is also cognizable under the APA. The APA provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, Plaintiffs have a cause of action under the APA as long as there has been final agency action, and as long as Congress has not limited review of such actions through other statutes or committed them to agency discretion. Neither of these bars to APA relief is present here. See 5 U.S.C. §§ 701(a), 704, 706; Bennett v. Spear, 520 U.S. 154, 175 (1997). The APA mandates that a court “shall . . . hold unlawful and set aside agency action . . . found to be . . . contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Plaintiffs’ challenge is to a final agency
53

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5544oof f110055
action and alleges that the action violates the Appropriations Clause, so it falls within the APA’s scope.23
Although section 701(a)(2) of the APA “preclude[s] judicial review of certain categories of administrative decisions,” this case does not involve such an “administrative decision traditionally regarded as committed to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993). In their emergency stay motion and related supplemental briefing, Defendants do not argue that DoD’s actions were committed to “agency discretion by law,” so as to preclude review under the APA. We agree with Defendants’ implicit concession that this is not a case involving a “statute . . . drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
Any constitutional challenge that Plaintiffs may advance under the APA would exist regardless of whether they could also assert an APA claim that DoD’s
23 Defendants argue that DoD’s reprogramming action is not a final agency action in part because it “imposes no obligations and confers no rights upon plaintiffs.” Exec. Tan Br. at 14. But the question we must ask in determining finality is whether the agency action imposes obligations on the agency, not whether it imposes obligations on Plaintiffs. See Bennett, 520 U.S. at 177 (holding that the challenged agency actions were final because they “alter[ed] the legal regime to which the action agency [wa]s subject” (emphasis added)). Here, as we have discussed, the reprogramming action purports to affect DoD’s legal right to use particular funds to build a border barrier instead of the purpose for which they were originally appropriated.
54

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5555oof f110055
application of section 8005 was “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C); see Webster v. Doe, 486 U.S. 592, 602-04 (1988) (holding that a plaintiff may raise under the APA a constitutional challenge to agency action even where the plaintiff lacks an avenue under the APA to argue that the same agency action is invalid for statutory or procedural reasons). If “Congress intends to preclude judicial review of constitutional claims[,] its intent to do so must be clear.” Webster, 487 U.S. at 603. Congress has not done so here.
3. Survival of at Least One Cause of Action The dissent argues that Plaintiffs’ claim is necessarily one encompassed by the APA, and that the availability of an APA cause of action precludes Plaintiffs’ equitable claim. We do not think that the APA forecloses Plaintiffs’ equitable claim. And even if it did, then for the reasons we have discussed, Plaintiffs would have an APA claim. Either way, it cannot be that both an equitable claim and an APA claim foreclose the other, leaving Plaintiffs with no recourse. It is true that the APA is the general mechanism by which to challenge final agency action. See Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018) (noting the “basic presumption of judicial review [created by the APA] for one ‘suffering legal wrong because of agency action’” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). But this does not mean the APA
55

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5566oof f110055
forecloses other causes of action. In Navajo Nation v. Department of the Interior, 876 F.3d 1144 (9th Cir. 2017), we explained that “a court is foreclosed by [APA section] 704 from entertaining claims brought under the APA seeking review of non-final agency action (and not otherwise permitted by law),” but that this final agency action limitation does not apply “to other types of claims (like . . . constitutional claims).” Id. at 1170.
Likewise, in Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989), we allowed constitutional claims to proceed without even deciding whether an APA cause of action was available. There, plaintiff churches brought claims for injunctive relief against the United States, DOJ, and the Immigration and Naturalization Service (“INS”) and certain INS officials, alleging violations of their First and Fourth Amendment rights by INS agents’ surreptitious recording of their church services. Id. at 520. The district court dismissed the plaintiffs’ claims as, in relevant part, barred by sovereign immunity. Id. at 521. We reversed, holding that APA section 702 waived the government defendants’ sovereign immunity for claims seeking non-monetary relief. Id. at 523-24. We further explained that this waiver of sovereign immunity was not limited to suits involving an “agency action” as defined under the APA. Id. at 525. We therefore did not reach the question whether the actions challenged in that case were ones for which the APA would provide a cause of action. Id. at 525 n.8. Rather, we remanded for
56

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5577oof f110055
further analysis of standing and mootness, and, if the district court determined it had jurisdiction, for evaluation of the plaintiffs’ constitutional claims. Id. at 529. Navajo Nation and Presbyterian Church clearly contemplate that claims challenging agency actions—particularly constitutional claims—may exist wholly apart from the APA.
In fact, the APA provides for judicial review only of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, no statute expressly makes Plaintiffs’ claims reviewable, but, as we have explained, Plaintiffs do have an adequate remedy in a court: an equitable cause of action for injunctive relief. If either form of their claim precludes the other, it would therefore seem that their equitable claim to enjoin unconstitutional action would preclude their APA claim to enjoin unconstitutional action. But even if it is the other way around, these causes of action cannot possibly be the legal equivalent of baking soda and vinegar—when they come in contact, there is no reason to believe they both go up in smoke.
C. Zone of Interests Defendants argue that even if a cause of action generally exists to challenge the reprogramming, Plaintiffs must satisfy a “zone of interests” test to establish that they, specifically, have a cause of action for the constitutional violation they allege here. Defendants argue that this test would apply to Plaintiffs’ claim
57

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5588oof f110055
whether characterized as an equitable cause of action to enjoin a constitutional violation or as an APA claim. We are doubtful that a zone of interests test applies to Plaintiffs’ equitable cause of action. Although we recognize that the APA generally does carry a zone of interests test, there is some lack of clarity with respect to what that might look like in a constitutional context. We need not resolve these ambiguities in the case law, however, because we believe Plaintiffs fall within any zone of interests test that may apply.
1. Applicability of a Zone of Interests Test Courts apply the zone of interests test to “determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). To determine whether a plaintiff satisfies this test we ask whether the plaintiff’s “interests fall within the zone of interests protected by the law invoked.” Id. at 129 (quotation marks omitted). In answering this question, we recognize that “the breadth of the [applicable] zone of interests varies according to the provisions of law at issue.” Id. at 130 (quoting Bennett, 520 U.S. at 163). The zone of interests test derives from the Supreme Court’s decision in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), where the Court articulated a limit on causes of action conferred by the
58

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee5599oof f110055
APA. But the Court clarified in Lexmark that the test “applies to all statutorily created causes of action . . . and that Congress is presumed to ‘legislate against the background of’ the zone-of-interests limitation, ‘which applies unless it is expressly negated.’” Lexmark, 572 U.S. at 129 (emphasis added) (quoting Bennett, 520 U.S. at 163).24
We are doubtful that any zone of interests test applies to Plaintiffs’ equitable cause of action to enjoin a violation of the Appropriations Clause, particularly after Lexmark.
As an initial matter, we are skeptical that there could be a zone of interests requirement for a claim alleging that official action was taken in the absence of all authority, like that which Plaintiffs assert here. The D.C. Circuit’s decision in Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987), explains why it does not make sense to treat such claims as carrying a zone of interests requirement. There, the court heard a challenge to a government program for
24 Many pre-Lexmark cases refer to the zone of interests test—and the broader question whether a particular plaintiff has a cause of action—as a part of the standing inquiry (and, more specifically, as a component of “prudential standing”). See Lexmark, 572 U.S. at 126-27. In Lexmark, however, the Court clarified that the zone of interests test does not go to a plaintiff’s standing but rather to whether the plaintiff has a cause of action. Id. at 127, 128 n.4. The Court suggested that holding otherwise would be “in some tension with [the Court’s] recent affirmation of the principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’” Id. at 126 (quoting Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013).
59

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6600oof f110055
intercepting ships carrying undocumented immigrants, in which the plaintiffs argued that the program exceeded authority granted by statute or the Constitution. Id. at 797-98. The court ultimately held that the plaintiffs lacked standing. Id. at 800-01. But, citing Youngstown in its discussion, the D.C. Circuit noted that the plaintiffs were not required to “show that their interests [fell] within the zones of interests of the constitutional and statutory powers invoked by the President in order to . . . challenge the . . . program as ultra vires.” Id. at 811 n.14. “Otherwise,” the court explained, “a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest.” Id. In other words, where the very claim is that no statutory or constitutional provision authorized a particular governmental action, it makes little sense to ask whether any statutory or constitutional provision was written for the benefit of any particular plaintiffs.
Consistent with this logic, Youngstown did not apply a zone of interests test. Although we acknowledge that Youngstown was decided before the Supreme Court had formally articulated a zone of interests test, Youngstown did not address any similar concept, either. Rather, the Court held that the President had unlawfully intruded on the lawmaking function reserved to Congress without ever discussing
60

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6611oof f110055
whether the plaintiffs, steel mill owners whose property was ordered to be seized, were the intended beneficiaries of the structural provisions in Article II.
Similarly, in Clinton v. City of New York, 524 U.S. 417 (1998), which addressed a Presentment Clause challenge, the Supreme Court said nothing about a zone of interests requirement. In that case, two sets of plaintiffs challenged the constitutionality of the Line Item Veto Act, which allowed the President to veto only particular provisions in enacted laws, rather than the entire law. Id. at 420-21. One set of plaintiffs consisted of the City of New York, a hospital and two hospital associations, and unions representing hospital employees. Id. at 425. Another consisted of a cooperative of Idaho potato growers, and an individual potato farmer. Id. All the plaintiffs alleged that they were injured by the President’s cancellation of particular line items in the budget that would have inured to their financial benefit. Id. at 421. The Supreme Court held that the Act violated the structural protections provided by the Presentment Clause, without asking whether the plaintiffs fell within any zone of interests of that clause. Id. at 436-48.
The Appropriations Clause likewise operates as a structural protection built into our constitutional system. Just as the Court in Clinton treated as sufficient that the plaintiffs were concretely injured as a result of the alleged Presentment Clause violation, we believe it is likely sufficient here that Plaintiffs would be concretely
61

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6622oof f110055
injured by the alleged Appropriations Clause violation, and that no zone of
interests test applies to their claim.
Even if a zone of interests test may have been applied to some cases
considering constitutional claims like Plaintiffs’ prior to Lexmark, we think that
Lexmark has called into question its continuing applicability to constitutional
claims. Lexmark focuses on Congress’s intent in creating statutory causes of
action, casting doubt on Defendants’ argument that a zone of interests test has any
role to play here, where Plaintiffs’ theory derives from the Constitution. The Court
in Lexmark described the purpose of the zone of interests test as being to discern
whether a statutory cause of action exists—specifically, “whether a legislatively
conferred cause of action encompasses a particular plaintiff’s claim.” 572 U.S. at
127. Because the Constitution was not created by any act of Congress, it is hard to see how the zone of interests test would even apply.25
25 Defendants argue that an equitable cause of action to enjoin a constitutional violation is, at its root, a creation of statute, and is therefore encompassed within Lexmark’s references to causes of action created by statute. Although Defendants are correct that Congress granted federal courts equity jurisdiction by statute, see Grupo Mexicano, 527 U.S. at 318 (“The Judiciary Act of 1789 conferred on the federal courts jurisdiction over all suits . . . in equity.” (quotation marks omitted)); see also 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”), we think it a stretch to conclude that the traditional equitable cause of action to enjoin a constitutional violation was therefore created by statute. Indeed, the lower federal courts are created entirely by statute, see An Act to Establish the Judicial Courts of the United States §§ 2-6, 1 Stat. 73 (1789),
62

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6633oof f110055
Indeed, in its recent decision in Tennessee Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, 2019 WL 2605555 (U.S. June 26, 2019), in which the plaintiffs alleged a violation of the dormant Commerce Clause, the Supreme Court did not even mention the zone of interests test. Given that the Court did apply a zone of interests test in Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977), a pre-Lexmark dormant Commerce Clause case, Tennessee Wine supports the idea that Lexmark has changed the landscape. See 429 U.S. at 602 n.3.
For all of these reasons, we doubt that any zone of interests test applies to Plaintiffs’ equitable cause of action.
We recognize that the Supreme Court has consistently applied a zone of interests test to causes of action arising under the APA. When the Court has applied the zone of interests test in APA actions, however, it has analyzed the zone of interests of the statute the agency is alleged to have violated, not any zone of interests of the APA itself. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012), for example, the Court examined an APA action alleging that the government had exceeded its statutory authority to take title
but this does not mean that all constitutional claims filed in a federal district court are really statutory claims. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (recognizing “a cause of action under the Fourth Amendment” for damages).
63

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6644oof f110055
to a piece of property “for the purpose of providing land for Indians.” Id. at 211 (quoting the Indian Reorganization Act, 25 U.S.C. § 465 (2012) (current version at 25 U.S.C. § 5108)). It concluded that the plaintiff, who lived near land that had been acquired by the Secretary of the Interior for an Indian tribe seeking to open a casino, was “arguably within the zone of interests to be protected or regulated by” the Indian Reorganization Act, which “authorize[d] the acquisition of property ‘for the purpose of providing land for Indians.’” Id. at 211-12, 224-26 (first quoting Ass’n of Data Processing Serv. Orgs., 397 U.S. at 153, then quoting 25 U.S.C. § 465 (2012) (current version at 25 U.S.C. § 5108)). In so doing, it departed from the reasoning of the district court, which had concluded that the plaintiff fell outside the Act’s zone of interests because he was “not an Indian, nor [did] he purport to seek to protect or vindicate the interests of any Indians or Indian tribes.” Patchak v. Salazar, 646 F. Supp. 2d 72, 77 (D.D.C. 2009). And in Air Courier Conference of America v. American Postal Workers Union, 498 U.S. 517 (1991), the Court asked whether postal workers bringing a claim under the APA were within the zone of interests protected by the Private Express Statutes on which their claims depended.26
26 In Bennett, the Court noted that because the zone of interests test “varies according to the provisions of law at issue, . . . what comes within the zone of interests of a statute for purposes of obtaining judicial review . . . under the ‘generous review provisions’ of the APA may not do so for other purposes.” 520
64

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6655oof f110055
Here, rather than looking at a statute underlying an APA action to determine the relevant zone of interests, we would need to look at the Appropriations Clause. Because, as we have discussed, we are doubtful that any zone of interests test applies to claims seeking to enjoin a violation of the Appropriations Clause, we think it is possible that the present type of APA claim is distinct from typical APA claims and that there is no zone of interests requirement here. We need not decide that question, however, because we believe that, even if a zone of interests test applied here, it would be satisfied.
2. Whether Any Zone of Interests Test Is Satisfied Defendants argue that Plaintiffs cannot satisfy the zone of interests test because their claims fall outside the zone of interests of section 8005. Although Plaintiffs’ Complaint did assert a claim under section 8005, it also asserted constitutional claims, including a claim for a violation of the Appropriations Clause. To the extent any zone of interests test applies to that constitutional claim (whether brought in equity or under the APA), it requires us to ask whether Plaintiffs fall within the zone of interests of the Appropriations Clause, not of section 8005. And when the Supreme Court has applied a zone of interests test to
U.S. at 163 (quoting Clark v. Sec. Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987)). We read this not to suggest that a particular zone of interests test applies to all APA actions, but that when analyzing whether a plaintiff falls within the zone of interests of a particular statute, courts should be particularly lenient if a violation of that statute is being asserted through an APA claim.
65

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6666oof f110055
claims about structural provisions of the Constitution, it has applied a very lenient version of that test.
For example, in Boston Stock Exchange, the Court held that plaintiff businesses that alleged financial injury from a state tax that discriminated against out-of-state businesses fell within the zone of interests of the implied dormant Commerce Clause, which functions as a limit on a state’s power relative to that of Congress to regulate interstate commerce. 429 U.S. at 320 n.3. Although the suit was not brought by Congress seeking to protect its Commerce Clause authority, or even by another state alleging harm from the defendant state’s tax law, the Court held that the plaintiffs were permitted to assert that the state defendant had acted in a manner that infringed on Congress’s constitutional authority. Id.
More recently, in McIntosh, we allowed criminal defendants charged with marijuana-related offenses to seek an injunction prohibiting DOJ from spending funds in violation of the Appropriations Clause. 833 F.3d at 1168, 1172. We explained: “When Congress has . . . expressly prohibit[ed] DOJ from spending funds on certain actions, federal criminal defendants may seek to enjoin the expenditure of those funds, and we may exercise jurisdiction over a district court’s direct denial of a request for such injunctive relief.” Id. at 1172-73. To the extent we implicitly applied a zone of interests test to the criminal defendants, it was not a restrictive one—indeed, our primary concern was to confirm that the defendants
66

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6677oof f110055
had standing to challenge the Appropriations Clause violation (and we concluded they did). Id. at 1173-74.
Accordingly, if Plaintiffs must fall within a zone of interests served by the constitutional provision they seek to vindicate, we are persuaded that they do. The Appropriations Clause is a vital instrument of separation of powers, which has as its aim the protection of individual rights and liberties—not merely separation for separation’s sake. See supra section V.A. As Justice Kennedy put it in Clinton:
[I]f a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened. . . . The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints. 524 U.S. at 451 (Kennedy, J., concurring). Because “individuals, too, are protected by the operations of separation of powers and checks and balances,” it follows that “they are not disabled from relying on those principles in otherwise justiciable cases and controversies.” Bond v. United States, 564 U.S. 211, 223 (2011). Plaintiffs assert that if Defendants’ allegedly unconstitutional spending proceeds, they will suffer injuries to their environmental, professional, aesthetic, and recreational interests. Those individual rights and interests resemble myriad interests that the Supreme Court has concluded—either explicitly or tacitly—fall within any applicable zone of interests encompassed by structural constitutional
67

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6688oof f110055
principles like separation of powers. See, e.g., Chadha, 462 U.S. at 935-36, 951-52 (allowing a plaintiff with an interest in avoiding deportation to bring a constitutional claim based on bicameralism and presentment requirements); Bos. Stock Exch., 429 U.S. at 602 n.3 (allowing a plaintiff stock exchange with an interest in avoiding a state tax to bring a claim enforcing Congress’s dominion over the regulation of interstate commerce). Plaintiffs’ claim that their rights or liberties were infringed by a violation of the Appropriations Clause therefore falls within any zone of interests required to enforce that clause’s provisions.
VI. The Remaining Stay Factors Our focus to this point has been on the first of the four factors to be considered in deciding a motion to stay, “whether the stay applicant has made a strong showing that he is likely to succeed on the merits.” Nken v. Holder, 556 U.S. 418, 434 (2009). The second factor, “whether the applicant will be irreparably injured absent a stay,” was identified in Nken together with the first factor as “the most critical.” Id. The Supreme Court observed in Nken that the third and fourth factors— whether issuance of a stay will substantially injure other parties and where the public interest lies—“merge when the Government is the opposing party.” Id. at 435. That case involved an application for a stay of removal by a noncitizen who was facing deportation. The motion before us presents a variant on that situation.
68

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee6699oof f110055
Here, it is Defendants who seek a stay, so the question whether Defendants will be irreparably injured absent a stay may, in practical terms, merge with consideration of the public interest.
Public interest is a concept to be considered broadly. The Court noted in Nken, for example, that there is a public interest in “preventing aliens from being wrongfully removed,” but also that there is “always a public interest in prompt execution of removal orders.” Id. at 436.
Defendants have discussed these three remaining factors together in terms of the “equitable balance of harms.” There is logic in that, so we will do the same, considering the respective impacts on Defendants, Plaintiffs and others interested in the proceedings, and the general public.
The primary harm cited by Defendants if a stay is not granted is that a “delay in the construction of border fencing pending appeal will create irreparable harm” because “deadly drugs [will] flow into this country in the interim.” They argue that CBP has recorded over 4,000 “drug-related events” between border crossings in the El Paso, El Centro, Tucson, and Yuma Sectors in Fiscal Year 2018 and cites CBP’s seizure of thousands of pounds of marijuana and lesser amounts of other illegal substances, including cocaine, heroin, methamphetamine, and fentanyl.
We do not question in the slightest the scourge that is illegal drug trafficking and the public interest in combatting it. Our circuit includes several border states,
69

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7700oof f110055
and our courts deal with no small number of cases involving illegal drugs crossing those states’ borders.
Defendants have not actually spoken to the more relevant questions, however. What will be the impact of building the barriers they propose? Even more to the point, what would be the impact of delaying the construction of those barriers? If these specific leaks are plugged, will the drugs flow through somewhere else? We do not know, but the evidence before us does not support a conclusion that enjoining the construction of the proposed barriers until this appeal is fully resolved will have a significant impact.
To begin with, the statistics cited by Defendants describe drug trafficking that CBP has detected with existing barriers and law enforcement efforts. They do not tell us how much gets through undetected or what additional amounts would be stopped by the proposed barriers.
As Plaintiffs point out, according to the Drug Enforcement Administration’s most recent assessment, the “majority of the [heroin] flow is through [privately operated vehicles] entering the United States at legal ports of entry, followed by tractor-trailers, where the heroin is co-mingled with legal goods.” Drug Enforcement Admin., 2018 National Drug Threat Assessment 19 (2018), https://www.dea.gov/sites/default/files/2018-11/DIR-03218%202018%20NDTA%20final%20low%20resolution.pdf. Only “a small
70

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7711oof f110055
percentage of all heroin seized by [CBP] along the land border was between Ports of Entry.” Id. Fentanyl transiting the southern border is likewise most commonly smuggled in “multi-kilogram loads” in vehicles crossing at legal ports of entry. Id. at 33. Defendants have not disputed these assessments.
That does not lead to a conclusion that leaks should not be plugged. It does suggest, however, that Defendants’ claim that failing to stay the injunction pending appeal will cause significant irreparable harm is supported by much less than meets the eye. Congress could have appropriated funds to construct these barriers if it concluded that the expenditure was in the public interest, but it did not.
For similar reasons, we are unmoved by Defendants’ contention that “the injunction threatens to permanently deprive DoD of its authorization to use the funds at issue to complete” the selected projects, including “approximately $1.1 billion it has transferred for these projects but has not yet obligated via construction contracts,” because “the funding will likely lapse during the appeal’s pendency.” A lapse in funding does not mean that the money will disappear from the Treasury. The country will still have that money. It could be spent in the future, including through appropriations enacted by Congress for the next fiscal year. The lapse simply means that Defendants’ effort to justify spending those funds based on the appropriations act for the current fiscal year and the authority to reprogram funds under section 8005 may be thwarted.
71

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7722oof f110055
Defendants’ identification of this lapse as a factor that should tip the balance of harms in their favor actually serves instead to illustrate the underlying weakness in their position. Defendants’ rush to spend this money is necessarily driven by their understanding that Congress did not appropriate requested funding for these purposes in the current budget and their expectation that Congress will not authorize that spending in the next fiscal year, either. The effort by Defendants to spend this money is not consistent with Congress’s power over the purse or with the tacit assessment by Congress that the spending would not be in the public interest.
Finally, Defendants maintain that a stay is necessary because DoD “is incurring unrecoverable fees and penalties of hundreds of thousands of dollars to its contractors for each day that construction is suspended.” But that liability resulted from Defendants’ own decisions about how to proceed in the face of litigation. Plaintiffs filed their motion for a preliminary injunction on April 4, 2019, and a hearing was held on May 17. When DoD awarded contracts on April 9 for El Paso Project Sector 1, and May 15 for Yuma Project Sector 1 and Tucson Project Sectors 1-3, DoD knew this litigation was pending and that the district court had been asked to enter a preliminary injunction. Placing significant weight on financial obligations that Defendants knowingly undertook would, in effect, reward them for self-inflicted wounds.
72

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7733oof f110055
Moving to the impacts on the Plaintiffs, Defendants denigrate those impacts as limited to “aesthetic and recreational injuries.” As noted above, see supra Section II, Defendants have elected not to dispute that Plaintiffs’ interests are sufficiently substantial to support Article III standing. Environmental injuries have been held sufficient in many cases to support injunctions blocking substantial government projects. The Supreme Court has observed that “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987).
As to the public interest, we conclude that the public interest weighs forcefully against issuing a stay. The Constitution assigns to Congress the power of the purse. Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars. As we have explained, see supra Section V.C.2., the Appropriations Clause serves as a check by requiring that “not a dollar of [money in the Treasury] can be used in the payment of any thing not thus previously sanctioned” by Congress,” as “[a]ny other course would give to the fiscal officers a most dangerous discretion.” Reeside v. Walker, 52 U.S.
73

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7744oof f110055
272, 291 (1850). In the words of then-Judge Kavanaugh, the Appropriations Clause is
a bulwark of the Constitution’s separation of powers among the three branches of the National Government. It is particularly important as a restraint on Executive Branch officers: If not for the Appropriations Clause, the executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure. U.S. Dep’t of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.) (quotation marks omitted). The Clause prevents the Executive Branch from “even inadvertently obligating the Government to pay money without statutory authority.” Id. The public interest in ensuring protection of this separation of powers is foundational and requires little elaboration. See supra Section V.A. Similarly, when Congress chooses how to address a problem, “[i]t is quite impossible . . . to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld,” as doing so is “not merely to disregard in a particular instance the clear will of Congress,” but “to disrespect the whole legislative process and the constitutional division of authority between President and Congress.” Youngstown, 343 U.S. at 609 (1952) (Frankfurter, J., concurring). Congress did not appropriate money to build the border barriers Defendants seek to build here. Congress presumably decided such construction at
74

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7755oof f110055
this time was not in the public interest. See id.; supra Section V.A.1.ii. It is not for us to reach a different conclusion.
The public interest and the balance of hardships do not support granting the motion to stay.
VII. Conclusion In his concurrence in Youngstown, Justice Jackson made eloquent comments that seem equally apt today:
The essence of our free Government is “leave to live by no man’s leave, underneath the law”—to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. . . . With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up. 343 U.S. at 654-55 (Jackson, J., concurring). Heeding Justice Jackson’s words, we deny Defendants’ motion for a stay.
75

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7766oof f110055

Sierra Club v. Trump, Case Nos. 19-16102, 19-16300 N.R. SMITH, Circuit Judge, dissenting:

FILED
JUL 03 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

The majority here takes an uncharted and risky approach—turning every

question of whether an executive officer exceeded a statutory grant of power into a

constitutional issue. This approach is in contradiction to the most fundamental

concepts of judicial review. The majority has created a constitutional issue where

none previously existed. See Dalton v. Specter, 511 U.S. 462, 472–74 (1994). We

have no right to expand the Judiciary’s role in this manner and, as explained in

greater detail below, the majority’s approach has been expressly rejected by the

Supreme Court.

Turning to the merits of the case before us, we are asked solely whether we

should stay a permanent injunction prohibiting Defendants from transferring

certain funds within the budget of the Department of Defense (DoD) to support

counterdrug activities, while the parties await a final ruling on the merits of the

permanent injunction order. We are not, as the majority claims, “evaluat[ing] the

merits more fully that we otherwise might.” Maj. Op. at 31. In fact, the parties have

expressly informed the court that they will be presenting an expedited briefing

schedule for the merits panel by July 8, 2019, Dkt. No. 65 at 4—four days after the

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7777oof f110055
parties anticipate a decision from the current panel.1 Because Defendants have satisfied their burden to obtain the requested relief when Plaintiffs’ claim is properly cast as a statutory issue, the majority should grant Defendants’ motion to stay the permanent injunction until the matter is finally determined on appeal.
In deciding whether to stay an injunction pending appeal, we must consider: “(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies,” Nken, 556 U.S. at 434 (citation omitted). “[H]arm to the opposing party and weighing the public interest . . . merge when the Government” is one of the parties. Id. at 435. Although “[t]he first two factors . . . are the most critical,” id. at 434, we must “give serious consideration to the public interest factor,” Nat. Res. Def. Council, Inc. v. Winter,
1The majority ignores this declaration. Maj. Op. at 31. The parties have asked us to expedite our decision, but they have not asked us to make a merits decision in contravention of traditional procedure. Nken v. Holder, 556 U.S. 418, 427 (2009) (recognizing that the “ordinary processes of administration and judicial review” best ensure “careful review and a meaningful decision” (citation omitted)). Whether an issue may become moot during the course of an appeal does not change the scope of our review for a motion to stay. Even though the parties rely on their previous briefs for purposes of this motion, they do not suggest that they do not have additional arguments for the merits of appeal. We should not be deciding the merits of these issues (potentially binding the merits panel).
2

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7788oof f110055
502 F.3d 859, 863 (9th Cir. 2007). In any event, the decision to grant or deny a
stay is discretionary. Nken, 556 U.S. at 433–34. Here, each factor favors issuing a stay.2
I. Defendants are Likely to Succeed on the Merits
The district court granted a permanent injunction in Plaintiffs’ favor based
on a purported statutory claim under the DoD Appropriations Act for Fiscal Year
2019, Pub. L. No. 115-245, §§ 8005, 9002, 132 Stat. 2981, 2999. See Permanent
Injunction Order at 3–4, 6–8. The district court analyzed only whether Defendants
exceeded their statutory authority under § 8005, without discussing whether they
also separately violated any constitutional provision. See generally id.
2Whether Defendants are likely to succeed on the merits of this appeal ultimately turns on whether the district court abused its discretion in issuing the permanent injunction. See La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014). Thus, even though this is only a motion to stay, we review the district court’s grant of a permanent injunction for abuse of discretion, and we review its legal conclusions de novo. Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d 1069, 1072 (9th Cir. 2015) (en banc). “It is an abuse of discretion to apply the wrong legal standard.” United States v. Emmett, 749 F.3d 817, 819 (9th Cir. 2014). As explained in greater detail below, the district court abused its discretion here by failing to analyze Plaintiffs’ claim under the Administrative Procedure Act. See, e.g., Permanent Injunction Order at 4 (“[T]he Court continues to find that the [zone of interests] test has no application in an ultra vires challenge, which operates outside of the APA framework.”). The majority does not defend the district court’s decision, but rules in Plaintiffs’ favor under a completely different—yet equally faulty—legal theory.
3

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee7799oof f110055
Nevertheless, the majority views Plaintiffs’ claim as, “at its core, one alleging a constitutional violation.” Maj. Op. at 32. As discussed below, viewing Plaintiffs’ claim as alleging a statutory violation is the proper approach. Dalton, 511 U.S. at 472–74.
When their claim is properly viewed as alleging a statutory violation, Plaintiffs have no mechanism to challenge Defendants’ actions. Plaintiffs have neither an implied statutory cause of action under § 8005, nor an equitable cause of action. See generally Dalton, 511 U.S. at 472–76. Nor do Plaintiffs have a cause of action to challenge the DoD’s § 8005 reprogramming under the Administrative Procedure Act (APA), as they fall outside of the zone of interests for such a claim. Consequently, Defendants have made a strong showing that they are likely to succeed on the merits of their appeal.
1. Plaintiffs Claim Is Properly Viewed as Alleging a Statutory Violation Because we are allowed to affirm the permanent injunction “on any ground supported by the record,” Sony Comput. Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 608 (9th Cir. 2000) (citation omitted), the majority denies Defendants’ motion for a stay by re-characterizing Plaintiffs’ claim as a constitutional violation—despite the contrary ground relied on by the district court in its
4

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8800oof f110055
decision3—which the majority now analyzes on the fly.
The majority’s primary mistake is drawing no distinction between a claim
that an agency is violating a statute and a claim that an agency is violating the
Constitution:
If section 8005 does not authorize the reallocation, however, then Defendants are acting outside of any statutory appropriation and are therefore spending funds contrary to Congress’s appropriations decisions. . . . The lack of compliance with section 8005 has sometimes been labeled ultra vires as outside statutory authority or as outside the President’s Article II powers, and spending without an appropriation has been described as a violation of the Appropriations Clause. However their claim is labeled, Plaintiffs’ theory is ultimately the same.
Maj. Op. at 34 & n.16. This approach is flatly contradicted by Dalton and related
cases, which clarified the distinction between “claims of constitutional violations
and claims that an official has acted in excess of his statutory authority” and
declared that “[o]ur cases do not support the proposition that every action by the
President, or by another executive official, in excess of his statutory authority is
3The district court construed Plaintiffs’ claim as an ultra vires action to enforce § 8005. Permanent Injunction Order at 4. It determined that principles of constitutional avoidance required it to first analyze whether § 8005 supported the reprogramming, and reach the constitutional analysis only if necessary. Sierra Club v. Trump, No. 19-CV-00892-HSG, 2019 WL 2247689, *18 (N.D. Cal. March 24, 2019); Permanent Injunction Order at 5 (“[N]o new factual or legal arguments persuade the Court that its analysis in the preliminary injunction order was wrong.”). Thus, the court never conducted a constitutional analysis of this question.
5

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8811oof f110055
ipso facto in violation of the Constitution.” Dalton, 511 U.S. at 472. Indeed, recasting Plaintiffs’ challenge—fundamentally a dispute about
whether the DoD erred in deciding that the pre-conditions of § 8005 were met—as a constitutional claim against the DoD for violating the Appropriations Clause contradicts several lines of caselaw.
First, Dalton clarifies that cases such as Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) involve constitutional violations, because “[t]he only basis of authority asserted was the [executive’s] inherent constitutional power.” Dalton, 511 U.S. at 473. In those instances, “the case necessarily turned on whether the Constitution authorized the [executive’s] actions,” only “[b]ecause no statutory authority was claimed.” Id. (emphasis added).
This is not that type of case. As noted by the majority, Plaintiffs’ claim entirely rises or falls on whether the DoD complied with the limitations in § 8005. Maj. Op. at 34 (“If Defendants were correct that section 8005 allowed this spending reallocation, Plaintiffs’ claim would fail, because the spending would be consistent with Congress’s appropriation legislation. If section 8005 does not authorize the reallocation, however, then Defendants are acting outside of any statutory appropriation and are therefore spending funds contrary to Congress’s appropriations decisions.”). The DoD offers no other source of authority besides a
6

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8822oof f110055
statute. Accordingly, this case “concern[s] only issues of statutory interpretation” and “no constitutional question whatever is raised.” Dalton, 511 U.S. at 474 n.6 (emphasis added) (citation and internal quotation marks omitted).
Second, applying Dalton to the Appropriations Clause context requires us to reject the majority’s logic, which relies on the assumption that every violation of an appropriations statute is necessarily a constitutional violation. In Dalton, Congress granted the President discretion to take certain actions, and the plaintiffs asserted that he had exceeded that authority. Id. at 474. The plaintiffs further claimed that, because the President had exceeded his statutory authority, he had also violated the Constitution. Id. That is precisely the majority’s approach in this case. See Maj. Op. at 51 (“Plaintiffs claim that to the extent Defendants did not have statutory authority to reprogram the funds, they acted in violation of constitutional separation of powers principles because Defendants lack any background constitutional authority to appropriate funds.”). The Supreme Court rejected this type of constitutional claim, flatly reminding us that “[t]he distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.” Dalton, 511 U.S. at 474.
Finally, the distinction between an Appropriations Clause violation and a
7

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8833oof f110055
non-constitutional “exceeding statutory authority” claim turns on the degree of discretion Congress has provided to the agency or President in appropriating funds. On the one hand, if Congress has entirely withdrawn agency discretion over the who, what, when, where, and why of agency spending, an Appropriations Clause violation may lie. See, e.g., United States v. McIntosh, 833 F.3d 1163, 1172, 1175 (9th Cir. 2016). On the other hand, if Congress has merely appropriated a lumpsum amount and leaves it to the agency to re-allocate funds toward a particular statutory purpose, Congress has provided such discretion to the agency that, not only could there be no constitutional violation, a challenger does not even have a viable “exceeding statutory authority” claim.4 See Lincoln v. Vigil, 508 U.S. 182, 193 (1993). Section 8005, which appropriates funds to the DoD and makes allocating those funds incumbent on the Secretary’s determination of the “national interest” and other factors, falls somewhere in the middle. Unlike the appropriations language in McIntosh, which we observed “specifically restricts [the Department of Justice (DOJ)] from spending money to pursue certain activities,” 833 F.3d at 1172 (emphasis added), or the non-discretionary “not to exceed” and “shall be allotted” language in Train v. City of New York, 420 U.S. 35, 42 (1975),
4The statutory claims in Dalton ultimately failed on this basis. See Dalton, 511 U.S. at 474–76.
8

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8844oof f110055
§ 8005 provides some discretion over the who, what, when, where, and why of agency spending. Yet, unlike the virtually unfettered discretion of the agency to reallocate funds towards particular statutory purposes in Lincoln, 508 U.S. at 192–93, § 8005 constrains the discretion and the DoD is “not free simply to disregard statutory responsibilities.” Id. at 193 (emphasis added). Accordingly, the DoD’s reprogramming of funds is a judicially reviewable statutory claim. The majority overlooks these points.
In attempting to distinguish Dalton, the majority misstates the chronology of the Supreme Court’s decision, claiming that “[t]he Supreme Court held that the plaintiff’s statutory challenge to the President’s decision failed because the statute gave the President unfettered discretion . . . [and] then also rejected the argument that because the President had allegedly violated the statute, he had acted unconstitutionally.” Maj. Op. at 49. However, the Supreme Court declared first that there was no constitutional issue, Dalton, 511 U.S. at 472–74, and only thereafter determined that the plaintiffs’ statutory claim failed based on the President’s unfettered discretion, id. at 474–76. Consequently, the Court’s conclusion that “no constitutional question whatever is raised” did not stem from its later conclusion that the President had, in fact, acted within his statutory authority in that case. Id. at 474 n.6; see also id. at 476–77 (“In sum . . . [t]he claim that the President exceeded
9

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8855oof f110055
his authority under the 1990 Act is not a constitutional claim, but a statutory one. Where a statute, such as the 1990 Act, commits decisionmaking to the discretion of the President, judicial review of the President’s decision is not available.” (emphasis added)).
The majority also attempts to distinguish Dalton on the grounds that it “did not say . . . that action in excess of statutory authority can never violate the Constitution or give rise to a constitutional claim.” Maj. Op. at 49. Albeit true that claims alleging statutory violations and those alleging constitutional violations are not mutually exclusive, Dalton expressly discussed when the two may be asserted together—by pointing to cases where the constitutionality of the authorizing statute itself is called into question. Dalton, 511 U.S. at 473 n.5; see, e.g., Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1325 (D.C. Cir. 1996) (determining that a claim raised a constitutional violation, because it alleged that the relevant statutory authority itself was “an unconstitutional delegation” of Congressional power). But Plaintiffs have not alleged that § 8005 is itself unconstitutional.
The majority’s approach would turn our current system of administrative review on its head, directing courts in this circuit to deem unconstitutional any reviewable executive actions (i.e., any actions that are not entirely within the
10

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8866oof f110055
actor’s discretion) that exceed a statutory grant of authority. Such an approach directly contradicts the Supreme Court’s declaration that “[o]ur cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.”5 Dalton, 511 U.S. at 472. For those reasons, the majority’s approach is flawed; no claim of a constitutional violation exists in this case.
2. Plaintiffs have no Implied Statutory Claim Whether Plaintiffs have an implied statutory cause of action under § 8005 turns on “whether Congress intended to create a private cause of action.” Karahalios v. Nat’l Fed’n of Fed. Emps., Local 1263, 489 U.S. 527, 532 (1989) (citation and internal quotation marks omitted). Here, “[t]here is no express suggestion” that Congress intended a direct judicial remedy for a § 8005 violation, and “neither the language nor the structure of the Act shows any congressional intent to provide a private cause of action to” judicially enforce such a violation. Id. at 532–33. Likewise, “[n]othing in the
5The majority’s approach is also directly contradicted by the D.C. Circuit. In Mountain States Legal Foundation v. Bush, our sister circuit determined that “[n]o constitutional . . . claim is before us, as the President exercised his delegated powers under the Antiquities Act,” precisely because “that statute includes intelligible principles to guide the President’s actions.” 306 F.3d 1132, 1137 (D.C. Cir. 2002) (emphasis added).
11

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8877oof f110055
legislative history of [§ 8005] has been called to our attention indicating that Congress contemplated direct judicial enforcement.” Id. at 533.
Furthermore, § 8005 is directed not at private parties or individuals, but at the Secretary of Defense; creates no apparent individual rights, much less an individual remedy; and “lacks the sort of rights-creating language needed to imply a private right of action.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1387 (2015).
3. Plaintiffs have no APA Claim With Dalton limiting our ability to construe Plaintiffs’ claim as alleging a constitutional violation, and with no implied statutory cause of action to challenge the agency’s action as a violation of § 8005, Plaintiffs are left with challenging the DoD’s reprogramming under the APA as an “abuse of discretion,” “not in accordance with law,” or “in excess of statutory jurisdiction.” See 5 U.S.C. § 706(2)(A), (C). See Clouser v. Espy, 42 F.3d 1522, 1527 n.5 (9th Cir. 1994) (construing a plaintiff’s challenge to Forest Service rulings “as issued without statutory authority” to be “a claim challenging agency action ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right’ under 5 U.S.C. § 706(2)(C)”). However, although the APA is the proper vehicle for challenging the DoD’s § 8005 reprogramming, Plaintiffs are not a proper party to bring such a
12

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8888oof f110055
claim, as they fall outside § 8005’s zone of interests. The majority errs by fashioning an equitable claim to bypass the APA’s limitations.
a. The APA is the Proper Vehicle for Challenging the DoD’s Action Where a statute imposes obligations on a federal agency but “does not give rise to a ‘private’ right of action against the federal government[,] [a]n aggrieved party may pursue its remedy under the APA.” San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096–99 (9th Cir. 2005) (explaining how a federal action is nearly always reviewable under the APA for conformity with statutory obligations even absent a “private right of action”). In other words, the APA opens the door for judicial review provided: (1) the agency’s action is “final,” 5 U.S.C. § 704; (2) the statute imposing obligations on the federal agency does not “preclude judicial review,” id. § 701(a)(1); and (3) the agency action is not “committed to agency discretion by law,” id. § 701(a)(2). See Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018). Each element is satisfied here. First, the agency’s action satisfies the test for “final agency action” for purposes of 5 U.S.C. § 704. The finality of an agency’s action turns on whether the decision represents the “consummation of the agency’s decisionmaking process” and whether it determines rights or obligations, or from which “legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citation omitted). After
13

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee8899oof f110055
approving the Department of Homeland Security’s (DHS) request for support under 10 U.S.C. § 284, the Secretary of Defense concluded support could be funded through the reprogramming of funds under § 8005. The Secretary found the § 8005 criteria were met. Following the necessary procedures, the DoD transferred the funds to the Drug Interdiction and Counter-Drug Activities, Defense, appropriation account. Because the DoD committed those funds for § 284(b)(7) support, “legal consequences [began to] flow.” See Bennett, 520 U.S. at 178 (citation omitted). Indeed, Defendants acknowledge that the § 8005 transfer was necessary for authorizing support under § 284 and constructing the wall.
Second, as explained above, § 8005 does not “preclude judicial review.” See 5 U.S.C. § 701(a)(1). Further, neither party presented “clear and convincing evidence” that § 8005 precludes APA’s default remedy. See Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
Finally, the DoD’s reprogramming of funds under § 8005 is not “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Defendants do not argue to the contrary, nor would such an argument succeed. The APA embodies a broad presumption of judicial review of agency action. Abbott Labs., 387 U.S. at 140–41. Out of concern that “legal lapses and violations occur, and especially so when they
14

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9900oof f110055
have no consequence,” Weyerhaeuser Co., 139 S. Ct. at 370 (quoting Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1652–53 (2015)), the Supreme Court “read[s] the [phrase ‘committed to agency discretion’] quite narrowly, restricting it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’” Id. (quoting Lincoln, 508 U.S. at 191).
The appropriation scheme governing § 8005 allows the DoD to reprogram funds provided the transferred funds address “higher priority items, based on unforeseen military requirements, than those for which originally appropriated.”6 § 8005. And “in no case” may the Secretary use the funds “where the item for which reprogramming is requested has been denied by the Congress.” Id. Thus, we do not confront one of those rare circumstances where a court would have no meaningful standard for judging the agency’s exercise of discretion. See Weyerhaeuser, 139 S. Ct. at 371–72 (citing Lincoln, 508 U.S. at 191); accord Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 413 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). For example, whether the “item” to be funded by the reprogrammed funds was “denied” by Congress turns on a meaningful question of statutory interpretation—i.e., what
6 Section 9002 is subject to these same limitations. 15

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9911oof f110055
does “item” and “denied” mean?7 This court is generally required to provide some
deference to such an interpretation, depending on the circumstance, see Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift
& Co., 323 U.S. 134 (1944),8 but the phrase undoubtedly places a judicially
reviewable constraint on the DoD’s actions.
b. Plaintiffs are Not the Proper Party to Bring an APA Claim
However, to bring a valid APA claim, Plaintiffs must establish that they “fall
within the zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 129 (2014) (citation omitted). They
have failed to do so.9
7Unlike in Lincoln, the appropriation scheme governing Plaintiffs’ claims does not involve a lump-sum appropriation designed with merely a general, overarching goal and no specific strings attached to the money. 508 U.S. at 189–92.
8In determining whether Defendants violated § 8005, we should defer to the DoD’s interpretation under Skidmore. See Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 487 (2004). Skidmore deference operates like a sliding scale, meaning the degree of deference we give the agency’s interpretation of a statute “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. We also consider whether the agency has changed its position or whether its interpretation “was framed for the specific purpose of aiding a party in this litigation.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 400 (2008).
9Because the majority concludes Plaintiffs’ APA claim is constitutional, we (continued...)
16

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9922oof f110055
The zone of interests test requires a court to determine whether, “in view of Congress’ evident intent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). “[T]he relevant zone of interests is not that of the APA itself, but rather the zone of interests to be protected or regulated by the statute that the plaintiff says was violated.” E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1244 (9th Cir. 2018) (alteration omitted) (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)). “[W]e first discern the interests arguably to be protected by the statutory provision at issue; we then inquire whether the plaintiff’s interests affected by the agency action in question are among them.” Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 492 (1998) (alteration and internal quotation marks omitted).
Although, “in the APA context, . . . the test is not ‘especially demanding,’” Lexmark, 572 U.S. at 130, it “is not toothless,” Nw. Requirements Utils. v. FERC,
9(...continued) disagree as to what zone of interests applies. However, as a statutory claim, Plaintiffs must fall within the zone of interests of § 8005. They have failed to do so. Because this claim should not be viewed as a constitutional claim under the Appropriations Clause, it is not necessary to decide whether Plaintiffs could (or would need to) fall within that zone of interests.
17

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9933oof f110055
798 F.3d 796, 808 (9th Cir. 2015). “In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399. Even under this generous standard, we have found certain APA claims fail the zone of interests test.10 See, e.g., Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir. 2005) (“[P]urely economic interests do not fall within [the National Environmental Policy Act’s (NEPA)] zone of interests” because “the zone of interests that NEPA protects [is] environmental.”); Havasupai Tribe v. Provencio, 906 F.3d 1155, 1166–67 (9th Cir. 2018) (recognizing that the plaintiff’s environmental interests fell outside the Mining Act’s zone of interests, but within the Federal Land Policy and Management Act’s zone of interests); Nw. Requirements Utils., 798 F.3d at 809 (determining zone of interests test not satisfied where the plaintiffs’ goals were likely to frustrate rather than further statutory objectives).
10Plaintiffs cite the D.C. Circuit’s decision in Scheduled Airlines Traffic Offices, Inc. v. Department of Defense, 87 F.3d 1356 (D.C. Cir. 1996) as “illustrat[ing] the expansive zone of interests for claims arising under statutes protecting Congress’s control over appropriations decisions.” However, that case merely applied the same zone of interests test that we do here to determine that the plaintiff’s economic interests were “sufficiently congruent” with the statute and fell within the zone of interests. Id. at 1360.
18

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9944oof f110055
Here, Plaintiffs’ interests fall outside § 8005’s zone of interests. Section 8005 operates only to authorize the Secretary of Defense to transfer previouslyappropriated funds between DoD accounts, based upon certain conditions and circumstances. This statute arguably protects Congress and those who would have been entitled to the funds as originally appropriated; and as a budgetary statute regarding the transfer of funds among DoD accounts, it arguably protects economic interests. Plaintiffs have not asserted that they would have been entitled to the funds but for the transfer, nor have they raised any other economic interests. Rather, they assert aesthetic, recreational, and generalized environmental interests that will be affected, not by the transfer of funds, but by the building of the border wall. Nothing in § 8005 requires that aesthetic, recreational, or environmental interests be considered before a transfer is made, nor does the statute even address such interests. At best, Plaintiffs’ interests are only “marginally related to . . . the purposes implicit in the statute [such] that it cannot reasonably be assumed that Congress intended to permit the suit,” Clarke, 479 U.S. at 399, and they fall outside § 8005’s zone of interests. Thus, Plaintiffs may not bring this APA claim, because their interests are not protected by the relevant statute.
c. The Existence of an APA Claim Also Precludes an Equitable Constitutional Claim Even though these Plaintiffs lack a cause of action under the APA, this court
19

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9955oof f110055
cannot save their claim by fashioning an “equitable” work-around to assert a constitutional claim, as the majority has done. Even if we ignored the discretion § 8005 provides to the DoD and thus could reframe Plaintiffs’ claim as a constitutional one, the APA’s “scope of review” provision would cover it. Those provisions provide that a reviewing court shall:
[H]old unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.] 5 U.S.C. § 706(2) (emphasis added). Where courts can review an agency action under the APA to ensure the agency has not abused its discretion, violated the Constitution, or otherwise operated outside its authority, we have no business devising additional “equitable” causes of action. Here, an avenue for challenging the DoD’s reprogramming action exists under the APA—just not for these Plaintiffs. Thus, there is no reason to resort to the extraordinary step of implying an equitable cause of action for these Plaintiffs. As the majority recognizes, “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity.” See Armstrong, 135 S. Ct. at 1384–85. However, this “judge-made remedy” does not
20

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9966oof f110055
provide courts the unfettered power to enjoin executive action; our power “is subject to express and implied statutory limitations.” Id. at 1385. The majority ignores this limitation, relying on inapposite cases to conclude that a federal court’s “equity” jurisdiction allows any would-be plaintiff to avoid proceeding under the APA. Maj. Op. at 46–47. That the Supreme Court considered challenges to a president’s action in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) and Trump v. Hawaii, 138 S. Ct. 2392 (2018) lends the majority no support; the APA does not apply to the President, see Dalton, 511 U.S. at 468, so no plaintiff would have an APA claim in those cases. Yet this case is about an agency action, and therefore the APA applies. Moreover, McIntosh arose in a very different context; our court did not “allow[] an equitable action to enforce the Appropriations Clause,” Maj. Op. at 48, we considered the Appropriations Clause as a defense for criminal defendants indicted for federal marijuana offenses, McIntosh, 833 F.3d at 1168 (“We are asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.”). Allowing defendants to invoke constitutional principles as a defense is common, see, e.g., Bond v. United States, 564 U.S. 211, 225–26 (2011),
21

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9977oof f110055
and distinguishable from the affirmative enforcement that the majority provides
here.11
The majority’s reliance on Armstrong highlights its fundamental
misunderstanding of cases involving a court’s equitable power to enjoin acts
violating federal law. Maj. Op. at 52–53. Congress has not displaced the possibility
of judge-made equitable remedies against federal agencies through the APA, see
Armstrong, 135 S. Ct. at 1385, it codified judicial review of agency action.12 Cf. W.
Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) (“The
fact that APA’s procedures are available where no other adequate alternative
remedy exists further indicates Congress’s intent that courts should not devise
11The majority misunderstands my point about the distinguishing features of McIntosh. Maj. Op. at 48. The question facing the McIntosh court was whether criminal defendants could halt their prosecutions by attacking how the DOJ was funding the prosecutions. 833 F.3d at 1172–73. All of the defendants “filed motions to dismiss or to enjoin on the basis of the rider.” Id. at 1170. In granting relief, the court stated that it “need not decide in the first instance exactly how the district courts should resolve claims that the DOJ is spending money to prosecute a defendant in violation of an appropriations rider. We therefore take no view on the precise relief required and leave that issue to the district courts in the first instance.” Id. at 1172 n.2. As such, McIntosh simply did not address or contemplate an injunction to enjoin spending funds parallel to the pending criminal proceedings.
12Without supporting authority, the majority even suggests that the availability of an equitable cause of action would preclude an APA claim under the APA provision providing for judicial review when “there is no other adequate remedy in a court.” Maj. Op. at 57 (quoting 5 U.S.C. § 704).
22

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9988oof f110055
additional, judicially crafted default remedies.”); San Carlos Apache Tribe, 417
F.3d at 1096–97 (“[C]reating a direct private action against the federal government
makes little sense in light of the administrative review scheme set out in the APA.”).13
The majority’s failure to channel Plaintiffs’ claims through the APA’s
framework for challenging agency action will inevitably lead to peculiar results.
What prevents future plaintiffs from simply challenging any agency action
“equitably,” thereby avoiding the APA’s limited judicial review under the
“arbitrary and capricious” standard, so that a court may substitute its own judgment
for that of the agency? See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass’n. of
United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The
majority offers no reason to distort decades of administrative law practice to
recognize Plaintiffs’ “equitable” action when the APA provides for review of the
13The majority’s reliance on Navajo Nation v. Department of the Interior, 876 F.3d 1144 (9th Cir. 2017) and Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) is misplaced. Presbyterian Church reserved the determination of whether there was “agency action” within the meaning of the APA, 870 F.2d at 525 n.8, meaning there was no “alternative” APA claim. Navajo Nation addressed the limits of the APA’s waiver of sovereign immunity, but offered no guidance about the propriety of bringing parallel claims espousing the same theory under two different causes of action (under the APA and “equitably”). 876 F.3d at 1171–72. Thus, neither case stands for the proposition that, where (as here) an agency action is reviewable under the APA, Plaintiffs may bring a parallel “equitable” claim.
23

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee9999oof f110055
DoD’s reprogramming actions. Although it may seem unjust that Plaintiffs have no viable recourse for their
asserted injuries, “[t]he judicial power of the United States conferred by Article III of the Constitution is upheld just as surely by withholding judicial relief where Congress has permissibly foreclosed it, as it is by granting such relief where authorized by the Constitution or by statute.” Dalton, 511 U.S. at 477. Plaintiffs’ relief has been permissibly foreclosed here, and Defendants have accordingly demonstrated a strong likelihood of success on the merits of their appeal. II. The Other Relevant Factors Also Favor a Stay
To reemphasize, the issue before us is a motion to stay the district court’s injunction under Federal Rule of Appellate Procedure 8. We are limited to decide only whether a stay should be granted until the appeal on the merits is final. Although “[a] stay is not a matter of right, even if irreparable injury might otherwise result,” it is “an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case.” Nken, 556 U.S. at 433 (citations, alteration, and quotation marks omitted). Here, the circumstances of this case merit our discretionary relief pending appeal.
Even if Defendants had failed to show a strong likelihood of success on the merits, they “may be entitled to prevail if [they] can demonstrate a ‘substantial case
24

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110000oof f110055
on the merits’ and the second and fourth factors [irreparable injury and public
interest] militate in [their] favor.” Winter, 502 F.3d at 863. Because Plaintiffs have
no viable claim for relief, Defendants have more than demonstrated a substantial case on the merits.14 Therefore, our panel must “give serious consideration” to the
second and fourth factors. Id.
As to irreparable harm, Defendants argue that without a stay they will be
prevented from ever using the enjoined funds to complete the identified projects
addressed by the permanent injunction. Defendants are likely correct. The funding
for those projects will lapse on September 30th, and even if Defendants prevail in
this court’s final ruling, we could not order or permit Defendants to spend funds
granted in a lapsed appropriation. See, e.g., City of Houston v. Dep’t of Hous. &
Urban Dev., 24 F.3d 1421, 1424, 1426–27 (D.C. Cir. 1994). No one appears to
dispute that this will likely be the practical consequence if a stay is denied.
14As to the discretionary standard of review, the district court did not apply the second and fourth factors (for the short period of time for which this appeal would be pending) to the request for the permanent injunction. Thus, its factual findings are not clear as to the motion before us. It did have the occasion to apply these two factors in its analysis of the stay of the preliminary injunction. However, in its analysis of that stay, it chose to ignore these factors, concluding that, “[b]ecause the Court finds that Defendants have not met their burden to make a strong showing that they are likely to succeed on the merits of their appeal, the Court need not further address the other Nken factors.” Sierra Club v. Trump, No. 19-CV-00892-HSG, 2019 WL 2305341, at *2 n.2 (N.D. Cal. May 30, 2019). This conclusion was an abuse of discretion. See Winter, 502 F.3d at 862.
25

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110011oof f110055
Congress may opt to appropriate new funds for these projects in the future, but that possibility is irrelevant. Simply, the permanent injunction will certainly render Defendants unable to use the funds at issue here under § 284(b)(7). Thus, there is a “possibility that . . . corrective relief will [not] be available at a later date, in the ordinary course of litigation.” See Sampson v. Murray, 415 U.S. 61, 90 (1974). Therefore, Defendants have demonstrated that they will be irreparably injured if a stay is not issued. See id.
As to the public interest, Defendants argue that their interests in preventing drug trafficking easily outweigh Plaintiffs’ aesthetic, recreational, and generalized environmental injuries. In the narrow context of this stay motion, Defendants are correct. Even though environmental injuries may be significant in the long term, the injunction will only be stayed for a short period.15 If the DoD is precluded from obligating these funds in the 2019 fiscal year, it must forgo providing support under § 284(b)(7). Defendants have adequately demonstrated that the public interest weighs in their favor for supporting § 284(b)(7) for at least three reasons.16
15As previously noted, the parties have suggested that an expedited briefing schedule will be requested. Given the need for a timely resolution of this case, this case should be resolved shortly.
16Whether the district court appropriately balanced these interests when it issued the permanent injunction is not before us. Our inquiry is limited to the motion to stay, and the final determination on the balance on interests is one that
(continued...) 26

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110022oof f110055
First, no one disputes that Defendants have broad authority to carry out a variety of actions aimed at disrupting the cross-border flow of narcotics in the affected areas. Cf. United States v. Guzman-Padilla, 573 F.3d 865, 889 (9th Cir. 2009). Nor does anyone dispute that Defendants are authorized by statute to construct fencing and other barriers for that purpose in the areas at issue in this lawsuit. See 10 U.S.C. § 284(b)(7). Nor even does anyone seriously dispute the DoD’s determination that drug trafficking along our southern border (including in the project areas at issue here) threatens the safety and security of our nation and its citizens. See Winter, 502 F.3d at 862 (“We customarily give considerable deference to the Executive Branch’s judgment regarding foreign policy and national defense.” (citing Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988))); see also Franklin, 505 U.S. at 818. Given this significant national security interest, the public would benefit more from a stay that—while this appeal is pending—permits Defendants to effect the policies that it has determined are necessary to minimize that threat, than it would from a decision that hampers Defendants’ ability to combat this threat throughout the present appellate process.17
16(...continued) the merits panel will ultimately decide.
17The record does not reflect that Congress “denied” funding under § 284. The funds at issue here will be used solely to “provide support for the counterdrug
(continued...) 27

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110033oof f110055
Second, if the injunction is allowed to remain in effect, it will, for reasons
outlined above, potentially cause irreparable harm to Defendants. On the other
hand, the irreparable harm to Plaintiffs during this relatively short period (if a stay
is granted) is less clear. Defendants have represented to this court that the projects
at issue are needed to protect national security and must go forward even if there is
a possibility that a merits panel may eventually order them to remove whatever
was constructed while a stay was in place. This is not the sort of determination that
courts will ordinarily second guess. See Winter, 502 F.3d at 862; Franklin, 505
U.S. at 818 (recognizing “the principle of judicial deference that pervades the area
of national security”); see also Munaf v. Geren, 553 U.S. 674, 689 (2008) (“We
therefore approach these questions cognizant that ‘courts traditionally have been
17(...continued) activities.” § 284. The fact that there were numerous discussions surrounding the building of a wall, during the budgetary negotiations and the shut down of the government, does not alter what Congress set forth in its appropriations bill for the DoD. See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 200 (2012) (“An agency’s discretion to spend appropriated funds is cabined only by the ‘text of the appropriation,’ not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history.” (citation omitted)). Nowhere in the DoD Appropriations Act are there limitations on its ability to act under § 284. Moreover, the transfer of funds stays within the DoD’s allotted appropriations and does not increase the appropriations of the DHS. Even if we should look to all appropriation acts, the only limitations placed on the DHS “for the construction of pedestrian fencing” were for geographic areas and “funds made available by this Act or prior Acts.” See Pub. L. No. 116-6, § 231, 133 Stat. 13, 28. see also id. § 232.
28

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110044oof f110055
reluctant to intrude upon the authority of the Executive in military and national security affairs.’” (quoting Egan, 484 U.S. at 530)). It is difficult to determine that Plaintiffs’ inability to recreate in and otherwise enjoy this public land would outweigh the claimed national interests during the limited period of time the requested stay would be in place—especially considering Plaintiffs do not have a viable cause of action to challenge Defendants’ actions under § 8005.
Third, the district court’s reasoning that the public interest does not favor Defendants, because the public has a generalized interest in ensuring that the Executive acts within the limits imposed by statute and by the Constitution, simply begs the question. If a court accepts the premise that Defendants exceeded statutory or constitutional limitations on its authority, then the public has an interest in seeing that the Executive Branch is “reined in.” However, if Defendants show that they did not exceed those bounds, then the public interest articulated by Plaintiffs and the district court has no merit. Moreover, when considering whether to grant a stay, the public interest factor cannot rise or fall on how the appeal is ultimately resolved on its merits. That analysis would collapse the public interest factor into the first element of the four-part test.
In conclusion, because Defendants have more than demonstrated a substantial case on the merits, and because the second and fourth factors “militate
29

CCaassee4::1199--1c6v-100028,9027-/H0S3/G201D9o, cIDum: 1e1n3t51492254F, iDlekdtE0n7t/r0y3: /7169, PPaaggee110055oof f110055
in [their] favor,” we should exercise our discretion and issue a stay pending the appeal of the district court’s permanent injunction. See Winter, 502 F.3d at 863. It makes little sense to tie Defendants’ hands while the appellate process plays out, especially given Plaintiffs’ lack of a viable claim and given the national security considerations present in this case.
30

 
 No. 20A-__

In the
Supreme Court of the United States
_______________________________

SIERRA CLUB, ET AL.,

Applicants,

v.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

Respondents,

_______________________________

APPLICANTS’ MOTION TO LIFT STAY _______________________________

Sanjay Narayan Gloria D. Smith SIERRA CLUB ENVIRONMENTAL LAW PROGRAM 2101 Webster Street, Suite 1300 Oakland, CA 94612 Vasudha Talla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 David Donatti Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS P.O. Box 8306 Houston, TX 77288

Dror Ladin Counsel of Record
Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 dladin@aclu.org 212.549.2500 Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 David D. Cole AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW Washington, D.C. 20005

Attorneys for Applicants

PARTIES TO THE PROCEEDING The applicants (plaintiffs-appellees below) are the Sierra Club and the Southern Border Communities Coalition. The respondents (defendants-appellants below) are Donald J. Trump, in his official capacity as President of the United States; Mark T. Esper, in his official capacity as Secretary of Defense; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; and Steven T. Mnuchin, in his official capacity as Secretary of the Treasury.*
RELATED PROCEEDINGS United States Supreme Court:
Trump v. Sierra Club, No. 19A60 (July 26, 2019)
United States Court of Appeals (9th Cir.): Sierra Club v. Trump, Nos. 19-16102 and 19-16300 (June 26, 2020)
United States District Court (N.D. Cal.): Sierra Club v. Trump, No. 19-cv-892 (June 28, 2019)
* The complaint named as official-capacity defendants then-Acting Secretary of Defense Patrick M. Shanahan and then-Secretary of Homeland Security Kirstjen M. Nielsen. Secretary Esper and Acting Secretary Wolf were substituted as defendants pursuant to Federal Rule of Civil Procedure 25(d).

CORPORATE DISCLOSURE STATEMENT In accordance with United States Supreme Court Rule 29.6, applicants make the following disclosures: 1) Applicants Sierra Club and Southern Border Communities Coalition do not have parent corporations. 2) No publicly held company owns ten percent or more of the stock of any applicant.
3

INTRODUCTION This case concerns whether Plaintiffs-Applicants (“Plaintiffs”), whose members own nearby property, and fish, hike, study, and otherwise use and enjoy a protected landscape, have any recourse when the executive branch causes them irreparable harm by directly contravening Congress’s considered decision to limit spending on border wall construction. Every court to address the question has concluded that the wall construction is illegal. A year ago, at an early stage of this litigation and the disputed construction, this Court granted an emergency stay of an injunction against the construction. Since then, intervening events have made clear that should that stay remain in effect, it will not preserve the status quo, but hand Defendants-Respondents (“Defendants”) a complete victory despite having lost in every court. When this Court granted its initial stay, it presumably assumed that it was merely granting interim relief, not deciding the merits in the guise of stay. That is no longer the case. At the same time, a series of intervening decisions, from the court below and several other courts, have strengthened Plaintiffs’ claims that Defendants’ actions are both unlawful and subject to judicial redress. Defendants have spent the past year rushing construction of a border wall that Congress denied and that multiple courts have all found unlawful. The court of appeals has now affirmed the injunction that this Court stayed, but the government has 150 days to seek certiorari. At this juncture, the Court’s stay, far from preserving the status quo, will permit Defendants to complete their project and threatens to
4

deprive Plaintiffs of a remedy. The Court should therefore lift the stay so that it may consider any certiorari petition in the ordinary course.
STATEMENT OF THE CASE A. Underlying Facts The President sought, and Congress denied, funding to construct a wall across the lands that Plaintiffs’ members live near, use, protect, and treasure. After Congress “repeatedly declined to provide the amount of funding requested by the President,” the “President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction.” App. 10a. The President’s public challenge triggered “the longest partial government shutdown in United States history.” App. 10a. During the shutdown, the White House “requested $5.7 billion to fund the construction of approximately 234 miles of new physical barrier.” App. 10a. “After 35 days, the government shutdown ended without an agreement to provide increased border wall funding in the amount requested by the President.” App. 10a. Congress denied the President’s request on February 14, 2019, instead passing the Consolidated Appropriations Act of 2019 (“CAA”), Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA made available only $1.375 billion for wall construction, and restricted construction to eastern Texas, in the United States Border Patrol’s Rio Grande Valley Sector. On February 15, the President signed the CAA into law. On the same day that Congress’s funding decision became law, the White House announced that the administration would act unilaterally to spend billions of
5

dollars above and beyond Congress’s appropriation. This sum included “$2.5 billion of Department of Defense (‘DoD’) funds that could be transferred to provide support for counterdrug activities of other federal government agencies under 10 U.S.C. § 284 (‘Section 284’),” App. 11a, a statute providing for “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States,” 10 U.S.C. § 284(b)(7). In addition, the White House announced that “up to $3.6 billion” of military construction funds would be diverted under 10 U.S.C. § 2808 (“Section 2808”). App. 206a.
Ten days later—less than two weeks after Congress denied the executive branch’s request to construct approximately 234 miles of new physical barrier in areas identified as the top Customs and Border Protection (“CBP”) priorities—DHS formally requested that the Department of Defense (“DoD”) fund “approximately 218 miles” of new walls in CBP priority areas. App. 12a. In the following months DoD approved $2.5 billion in Section 284 expenditures for DHS construction, as specified in the February 15 White House announcement. App. 12a.
None of the Section 284 construction was paid for by funds that Congress had appropriated for DoD’s Section 284 account, and the construction projects chosen by the executive branch directly contravened the limitations Congress placed on border wall construction. At the time Defendants embarked on their plan to circumvent Congress, the Section 284 account contained “less than one tenth of the $2.5 billion needed to complete those projects.” App. 12a. So DoD invoked Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019, Pub. L. No.
6

115-245, 132 Stat. 2981 (2018) (“Section 8005”) to transfer “$1 billion from Army personnel funds” and an additional “1.5 billion from ‘various excess appropriations,’ which contained funds originally appropriated for purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.” App. 12a–13a. These transfer authorities are explicitly limited by Congress and “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” App.13a–14a.
B. Proceedings Prior to this Court’s Grant of a Stay Plaintiffs sued on February 19, 2019, one business day after the president’s announcement that he intended to construct the wall that Congress rejected. Plaintiffs’ members live near and use the lands on which Defendants seek to construct a massive, multibillion-dollar wall. This unique landscape is renowned for its beauty and archaeological, historic, and biological value, and includes protected public lands, including Organ Pipe National Monument, Coronado National Memorial, the Cabeza Prieta National Wildlife Refuge, and the San Bernardino National Wildlife Refuge. Beginning on April 4, 2019, as Defendants made public their construction decisions, Plaintiffs sought injunctions against specific wall segments. To enable expeditious and orderly review and disposition of this action, Plaintiffs sought partial summary judgment and a permanent injunction on June 12, 2019. On May 24, 2019, the district court entered a preliminary injunction barring Defendants’ initial transfer of $1 billion to construct wall sections in Arizona and New
7

Mexico. The district court concluded that Defendants’ plan was unlawful, because they had not identified any statutory authority that permitted them to spend funds on wall construction in excess of what Congress had appropriated in the CAA. In particular, the district court found that the wall construction at issue here was “denied by Congress” and was not “unforeseen,” thus failing the requirements of the authority Defendants had invoked, Section 8005 of the DoD Appropriations Act. App. 229a–234a.
The district court rejected Defendants’ argument that Congress had never “denied” the wall construction projects, finding that “the reality is that Congress was presented with—and declined to grant—a $5.7 billion request for border barrier construction.” App. 232a. The court observed that Defendants’ reading of “denied,” which would apply only to specific rejections of budget-line requests, would defeat the entire purpose of the limitation because Defendants could simply (as they did here) request items without reference to specific budget lines or subcomponents. App. 230a–231a, 235a–236a; see also Office of Management & Budget Letter 1, Dist. Ct. ECF No. 168-2, Ex. 13 (RJN) (“The President requests $5.7 billion for construction of a steel barrier for the Southwest border.”).
The district court likewise rejected Defendants’ contention that the need for wall funds was “unforeseen.” For more than a year before the transfers, the Executive Branch requested, and Congress considered, the allocation of billions of dollars to build a border wall in these same lands. App. 233a–234a.
8

The district court also noted that Defendants’ position raised serious constitutional concerns under the Appropriations Clause and the separation of powers: “[T]he position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds ‘without Congress’ does not square with fundamental separation of powers principles dating back to the earliest days of our Republic.” App. 252a–253a.
The district court rejected Defendants’ argument that Plaintiffs were required to satisfy a zone-of-interests test with respect to Section 8005. It held that Plaintiffs did not “seek[] to vindicate a right protected by a statutory provision,” but instead sought “equitable relief against a defendant for exceeding its statutory authority.” App. 228a.
On June 28, 2019, the district court issued a permanent injunction incorporating its prior reasoning on the merits. On the equities of the injunction, the district court “note[d] that Congress considered all of Defendants’ proffered needs for border barrier construction, weighed the public interest in such construction against Defendants’ request for taxpayer money, and struck what it considered to be the proper balance—in the public’s interest—by making available only $1.375 billion in funding, which was for certain border barrier construction not at issue here.” App. 195a.
Defendants sought an emergency stay of the district court’s preliminary injunction. On July 3, 2019, the court of appeals denied the stay motion in a published 2-1 opinion. Judges Clifton and Friedland, writing for the court, held that “[b]ecause
9

section 8005 did not authorize DoD to reprogram the funds—and Defendants do not and cannot argue that any other statutory or constitutional provision authorized the reprogramming—the use of those funds violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.” Sierra Club v. Trump, 929 F.3d 670, 676 (9th Cir. 2019).
Judge Smith dissented, concluding that Plaintiffs could not bring an Administrative Procedure Act claim, and that the APA foreclosed the judiciary’s power in equity to enjoin the Executive Branch actions here. Id. at 713–717 (Smith, J., dissenting). In dissenting from the majority’s refusal to grant a stay, Judge Smith also reasoned (more than a year ago) that “the injunction will only be stayed for a short period,” thus minimizing, “[i]n the narrow context of this stay motion,” environmental injuries that might otherwise “be significant in the long term.” Id. at 718 & n.15.
On July 12, 2019, Defendants filed a stay application with this Court. The Court granted the stay on July 26, 2019. App. 185a. The Court explained that “Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” App. 185a.
C. Proceedings Since this Court’s Stay Judicial decisions in this case and several related cases have issued since the Court’s stay. All agree that the government’s actions are subject to review; and each one that reached the merits ruled that the government’s actions are unlawful.
10

On June 26, 2020, a separate court of appeals panel affirmed the district court’s injunction on the merits in a comprehensive decision. Writing for the court of appeals, Chief Judge Thomas found that Congress did not appropriate funds for border wall construction, and that Defendants could not rely on Section 8005 to make up the shortfall by transferring billions from the military budget to DHS’s unfunded wall projects. The court of appeals set forth its reasoning that Section 8005 was inapplicable to the border wall expenditures in an opinion filed the same day in the companion case, State of California, et al. v. Trump, et al., Nos. 19-16299 & 19-16336, (9th Cir. June 26, 2020), App. 119a.
The court of appeals agreed with the district court that border wall construction was not “unforeseen.” App. 119a–124a. It pointed out that Defendants’ position—that a Section 284 request is foreseen only at the moment it is received by DoD—“would swallow the rule and undermine Congress’s constitutional appropriations power,” and would be “inconsistent with the purpose of Section 8005: to ‘tighten congressional control of the reprogramming process.’” App. 122a (quoting H.R. Rep. No. 93-662, at 16 (1973)). Moreover, the historical record demonstrated that DoD did, in fact, anticipate just such a request for Section 284 funds. App. 122a– 123a.
In addition, the court of appeals found that construction of border wall sections aimed at a civilian law enforcement agency’s counterdrug mission is not a “military requirement,” and Congress limited the use of Section 8005 to such requirements. App. 124a–128a. “To conclude that supporting projects unconnected to any military
11

purpose or installation satisfies the meaning of ‘military requirement’ would effectively write the term out of Section 8005.” App. 128a.
The court of appeals also agreed with the district court that “Congress’s broad and resounding denial resulting in a 35-day partial government shutdown must constitute a previous denial for purposes of Section 8005.” App. 129a. The court “decline[d] to impose upon Congress an obligation to deny every possible source of funding when it refuses to fund a particular project,” observing that “surely when Congress withheld additional funding for the border wall, it intended to withhold additional funding for the wall, regardless of its source.” App. 129a.
Because Section 8005 was inapplicable, and “the Executive Branch lacked independent constitutional authority to authorize the transfer of funds,” the court of appeals concluded that Defendants’ plan to transfer $2.5 billion in taxpayer funds to border wall construction was unlawful. App. 25a.
The court of appeals determined that Sierra Club, whose members are injured by Defendants’ efforts to evade Congress’s appropriations decisions, “has both a constitutional and an ultra vires cause of action.” App. 25a. The court of appeals held that “because the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties,”—the Appropriations Clause— “Sierra Club has a constitutional cause of action here.” App. 31a. This conclusion flowed from this Court’s guidance that “certain structural provisions give rise to causes of action.” App. 26a.
12

The court further held that an equitable ultra vires cause of action was available, in line with a long tradition of such equitable review. App. 31a–36a. The court observed that “[e]quitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a ‘judgemade remedy’ for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review.” App. 32a (quoting Armstrong v. Exceptional Child Ctr., Inc.), 575 U.S. 320, 327 (2015)). Relying on decades of decisions from the D.C. Circuit and this Court, the court found that “[s]uch causes of action have been traditionally available in American courts.” App. 32a (citing Dart v. United States, 848 F.2d 217, 223 (D.C. Cir. 1988) (“When Congress limits its delegation of power, courts infer (unless the statute clearly directs otherwise) that Congress expects this limitation to be judicially enforced.”)). Following the D.C. Circuit, the court rejected the arguments that the APA displaced traditional equitable review, and that Plaintiffs were required to satisfy the zone of interests of Section 8005 in challenging wall construction that Congress refused to fund. App. 36a–40a.
Finally, the court of appeals found that the district court did not abuse its discretion in granting an injunction against Defendants’ construction. It rejected Defendants’ argument “that Sierra Club will not be irreparably harmed because its members have plenty of other space to enjoy.” App. 41a. And it found that the balance of equities and public interest favored enforcement of Congress’s “calculated choice to fund only one segment of border barrier.” App. 42a. “No matter how great the
13

collateral benefits of building a border wall may be, the transfer of funds for construction remains unlawful.” App. 42a. Moreover, unlike in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 32 (2008), Defendants failed to produce any evidence of the benefits of border wall construction. App. 44a. “The Executive Branch’s failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own data points to a contrary conclusion.” App. 44a–45a.
In dissent, Judge Collins “agreed that at least the Sierra Club has established Article III standing,” but “conclude[d] that the transfers were lawful” and that Plaintiffs “lack[ed] any cause of action” to challenge them. App. 47a.
Several related district court decisions have also issued since the stay order. The decisions concern numerous aspects of Defendants’ wall-building plan, including the additional diversion of $3.6 billion in military construction funds under claimed Section 2808 authority that Defendants undertook after the stay order. Three of the four decisions reached the merits and found that aggrandizing wall construction with billions of military dollars is unlawful; the fourth denied a motion to dismiss and found that an ultra vires claim was available to challenge wall construction under claimed Section 8005 authority.
On October 11, 2019, in a case brought by El Paso County and a community organization in the Western District of Texas, Senior Judge Briones found that Defendants’ efforts to spend billions of military dollars on wall construction violates
14

Congress’s decision to limit the scope and location of wall construction in enacting the CAA. See El Paso County v. Trump, 408 F. Supp. 3d 840, 857 (W.D. Tex. 2019). The court noted its agreement with the district court in this matter that “when a plaintiff seeks equitable relief against a defendant for exceeding its statutory authority, the zone-of-interests test is inapposite.” Id. at 856 n.1 (citing Sierra Club v. Trump, 379 F.Supp.3d 883, 910 (N.D. Cal. 2019)). Due to this Court’s stay order, the district court found claims regarding Section 284 “unviable” and limited its holding to Section 2808. Id. at 846. In a subsequent order the court therefore enjoined the use of military construction funds under § 2808 but declined to “issue an injunction regarding the § 284 projects that would effectively override the Supreme Court’s order.” El Paso County, Texas v. Trump, 407 F. Supp. 3d 655, 661 (W.D. Tex. 2019). The Fifth Circuit stayed the injunction, explaining that “among other reasons” there was a “substantial likelihood that Appellees lack Article III standing.” El Paso Cty. v. Trump, No. 1951144, 2020 U.S. App. LEXIS 567 (5th Cir. Jan. 8, 2020).2
On December 11, 2019, the district court in this action entered a permanent injunction against Defendants’ construction of 175 miles of additional border wall sections through diversion of $3.6 billion in military construction funds. The district court “decline[d] to interpret Section 2808 to provide the Secretary of Defense with almost limitless authority to use billions of dollars of its appropriations to build
2 This concern is irrelevant here: as the court of appeals noted, “[t]he Federal Defendants do not challenge Sierra Club’s Article III standing in these appeals,” App. 17a n.9, and the dissent agreed that Plaintiffs here have standing, App. 47a.
15

projects for the benefit of DHS, even when Congress specifically declined to give DHS itself the funds to build those projects.” California v. Trump, 407 F. Supp. 3d 869, 897 (N.D. Cal. 2019) (citing Util. Air Regulatory Grp., 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” (quotation omitted))). The district court stayed the injunction pending appeal, noting that “the Supreme Court’s stay of this Court’s prior injunction order appears to reflect the conclusion of a majority of that Court that the challenged construction should be permitted to proceed pending resolution of the merits.” Id. at 907.
On February 27, 2020, in a case brought by the State of Washington in the Western District of Washington, Judge Rothstein found that Defendants did not have authority to use Section 2808 to aggrandize border wall funding beyond the $1.375 billion that Congress appropriated for that purpose. See State v. Trump, --- F.Supp.3d ---, No. 2:19-CV-01502-BJR, 2020 WL 949934 (W.D. Wash. Feb. 27, 2020). The court found that Congress “saw fit to limit funding for border barrier construction to $1.37 billion all in accordance with its exclusive spending power,” and that the CAA “explicitly prohibits the Trump Administration from circumventing Congress, and instead requires that any increased funding for the border wall come through an appropriations act. Id. at *8–10. The court observed that “Congress repeatedly and deliberately declined to appropriate the full funds the President requested for a border wall along the southern border of the United States,” and cautioned that, “[a]s Justice Field wrote more than a century ago, a court cannot shut its ‘eyes to matters
16

of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.’” Id. at *13 (quoting Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879)).
Finally, on April 2, 2020, Judge McFadden of the district court for the District of Columbia refused to dismiss ultra vires claims brought by environmental plaintiffs who “plausibly allege[d] that Defendants used § 8005 to fund border wall construction and that Congress denied funds for this border wall project.” Ctr. for Biological Diversity v. Trump, –- F.Supp.3d ---, No. 1:19-CV-00408 (TNM), 2020 WL 1643657, at *26 (D.D.C. Apr. 2, 2020). Although the court sustained the ultra vires cause of action, it found that a constitutional cause of action was unavailable. See id. at *28.
D. Factual developments since the Court’s stay In the year that this Court’s stay has been in place, Plaintiffs have sought at every turn to expedite the litigation. Meanwhile, the Defendants have sought to expedite construction of the wall. At the same time, in response to the COVID-19 pandemic, this Court has extended the time for filing a petition for certiorari to 150 days. As a result, the Defendants now concede that they will be able to build the entirety of the wall in dispute before they have to file a petition for certiorari. Due to the ongoing COVID-19 pandemic, this Court extended the deadline to file petitions for writs of certiorari to 150 days from the date of the lower court judgment or order denying a timely petition for rehearing. See Order of March 19, 2020. The earliest a petition for certiorari would therefore be due is November 23, 2020. Even if Plaintiffs waive their brief in opposition, the petition could not be
17

conferenced before December 4, 2020. Should Defendants file a petition for rehearing in the court of appeals, the current deadline extension means that their petition for certiorari need not be filed in time for any conference this year.
In the time that has elapsed since the Court stayed the injunction a year ago, Defendants have already completed several of the projects enjoined as unlawful by the District Court—El Centro 1 and Yuma 1 & 2. See Border Wall System, U.S. Customs and Border Protection, https://www.cbp.gov/border-security/along-usborders/border-wall-system. As to the remaining projects, according to CBP, Defendants have completed just under 2/3 of the Tucson Border Wall System Project, and will complete the project by the end of 2020. See Border-Wall Project Could Block San Pedro River, Public News Service (July 8, 2020), https://www.publicnewsservice.org/2020-07-08/environment/border-wall-projectcould-block-san-pedro-river/a70787-1. On July 15, CBP’s Public Lands Liaison informed the Sierra Club that Defendants had completed more than half of the El Paso 1 project, and that it would be complete by the end of 2020. In short, if the stay remains in place, Defendants will complete the entire wall before they even need to file a petition for certiorari with this Court.
These projects have already had significant consequences for both the natural landscape as well as archaeological and tribal sites, and will cause additional destruction unless the stay is lifted. The National Park Service warned that border wall construction at Organ Pipe Cactus National Monument, a UNESCO biosphere reserve in Arizona’s Sonoran Desert, could damage or destroy 22 archaeological sites.
18

Border Fence Construction Could Destroy Archaeological Sites, National Park Service Finds, Wash. Post (Sept. 17, 2019), https://wapo.st/39eD5dr. Defendants have already blasted through parts of Monument Hill, which includes a burial site for the Tohono O’odham Nation, a resting place for primarily Apache warriors. Sacred Native American Burial Sites are Being Blown Up for Trump’s Border Wall, Lawmaker Says, Wash. Post (Feb. 9, 2020), https://wapo.st/30y6efV. Elsewhere, Defendants have begun construction across Arizona’s San Pedro River, the last free-flowing stream in the Sonoran Desert, Border-Wall Project Could Block San Pedro River, Public News Service (July 8, 2020), https://www.publicnewsservice.org/2020-0708/environment/border-wall-project-could-block-san-pedro-river/a70787-1.
ARGUMENT The Court should vacate its order staying the injunction because intervening events have made clear that unless the stay is lifted, Defendants will complete the wall that is the subject of this litigation before their petition for certiorari is due. Accordingly, Defendants will effectively prevail on the merits, even though every court to assess the legality of Defendants’ actions has found them unauthorized. A stay should preserve the status quo, not grant the losing party a complete victory without appeal. Plaintiffs have done everything in their power to enable expeditious review, including seeking speedy entry of partial summary judgment and securing an expedited briefing and argument schedule from the court of appeals. They have succeeded before the lower courts, including two separate appellate panels. But the
19

combination of this Court’s extended filing deadlines and Defendants’ rush to complete the wall now threatens to deny the possibility of redress for Plaintiffs’ claims. Defendants plan to complete the wall before they would have to seek certiorari. At that point, they need not even file a petition for certiorari, as they will have effectively prevailed. Should the stay remain in place, it therefore will “be tantamount to a decision on the merits in favor of the applicants.” Nat’l Socialist Party of Am. v. Village of Skokie, 434 U.S. 1327, 1328 (1977) (Stevens, J., in chambers). That is manifestly not the purpose of a stay.
At the same time, numerous intervening decisions lend substantial new support to the district court’s injunction. These decisions confirm both that Defendants’ plan to spend billions of military dollars on a border wall is unlawful, and that a cause of action exists for Plaintiffs to seek redress for their injuries. Under these extraordinary circumstances, the Court should lift its stay. I. IF THE STAY CONTINUES, DEFENDANTS WILL COMPLETE THEIR
UNLAWFUL PROJECT WHILE EVADING THIS COURT’S REVIEW. At this point, leaving the stay in place will not preserve the status quo; to the contrary, Defendants will prevail on the merits without ever getting a single court to rule in their favor. At the same time, their actions will inflict irreparable injury on the Plaintiffs, and irreversible damage to the lands in question. Cf. San Diegans For Mt. Soledad Nat. War Mem’l v. Paulson, 548 U.S. 1301, 1303 (2006) (Kennedy, J., in chambers) (granting stay to “preserv[e] the status quo,” because “[c]ompared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay pending the Court of Appeals’ expedited consideration of the case seems
20

slight”). A stay should be just that: a stay. Not a victory for the party that has lost before every court that has adjudicated the wall’s legality.
This Court’s extension of filing deadlines in response to the COVID-19 pandemic means that Defendants need not file a petition for certiorari in time for the Court’s consideration in 2020. At the same time, exploiting the stay, Defendants have expedited wall construction. In the words of Acting CBP Commissioner Mark Morgan, “This pandemic has not slowed the construction of the border wall system. In fact, we’re increasing the pace of construction.” Border Wall Construction Has Sped Up Amid Coronavirus Crisis, CBP Chief Says, Fox News (May 14, 2020), https://www.foxnews.com/politics/border-wall-construction-has-sped-up-amidcoronavirus. As a result, by Defendants’ own estimates, every wall section at issue in the injunction will be complete by the end of 2020.
Although some of Plaintiffs’ injuries can be reversed by taking down the unlawful construction, much of the damage Defendants are inflicting on the borderlands will be beyond repair. In their rush to construct the border wall, Defendants are destroying protected saguaro cacti that can take 100 years to reach maturity, and “according to tribal leaders of the Tohono O’odham Nation who live on both sides of the border, [are] blasting ancient burial sites and siphoning an aquifer that feeds a desert oasis where human beings have slaked their thirst for 16,000 years.” Tribal Nation Condemns ‘Desecration’ to Build Border Wall, N.Y. Times (Feb. 26, 2020), https://nyti.ms/32zcqHb. Defendants have dispensed with protections used in the past, rendering their actions even more destructive and irreparable:
21

During construction of a section of border wall in 2008, the Bush administration trucked in water for construction use instead of extracting water from the aquifer feeding the Quitobaquito spring. . . . Now workers at the site are pumping water from the aquifer beneath Quitobaquito to mix cement and to water down dirt roads around construction sites. That could endanger not just the spring’s existence but species in its waters such as the Quitobaquito pupfish and Sonoyta mud turtle, according to the National Park Service.
Id. Defendants’ destructive approach to the wall project shifts the equities towards
reinstating the district court’s injunction, because when environmental injury is
“sufficiently likely, . . . the balance of harms will usually favor the issuance of an
injunction to protect the environment.” Amoco Prod. Co. v. Village of Gambell, Alaska,
480 U.S. 531, 545 (1987).
At the same time, Defendants’ asserted justification for a stay has
substantially weakened. One of their chief arguments in applying for the stay was
that DoD would permanently lose access to the funds at issue in the Section 8005
injunction if that injunction was not stayed pending appeal. See, e.g., Defs.’ Reply in
Supp. of Stay Appl. 15, Trump v. Sierra Club, No. 19A60 (S. Ct. July 22, 2019)
(asserting that “declining to stay the injunction could well be tantamount to a decision
on the merits in favor of respondents, at least in part” because DoD would be unable
to obligate the challenged funds even if it prevailed). Defendants have now obligated
100% of the $2.5 billion at stake in this appeal; lifting the stay would not bar the
obligation of funds, but would prevent Defendants from completing construction, and
inflicting permanent and irreversible damage, before the Court has an opportunity to
consider the merits of the case.
22

As to the remaining equities Defendants raised in their application, those have proven insubstantial. As the court of appeals found, “[t]he Executive Branch’s failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own data points to a contrary conclusion.” App. 44a– 45a. Since this Court’s grant of a stay, multiple courts have now found that Defendants are acting in circumvention of Congress’s funding decisions—and not a single court has ruled otherwise. As the court of appeals recognized, the public interest therefore favors enforcement of Congress’s “calculated choice to fund only one segment of border barrier.” App. 42a; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609–10 (Frankfurter, J., concurring) (“When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion.”).
Most important, neither the public interest nor the balance of equities support allowing Defendants to achieve full relief on the merits by leaving an emergency stay in place for more than a year, while expediting their construction to complete the wall before this Court can consider its legality. What the Court initially entered as interim relief to permit considered review, will now accomplish the opposite. It threatens to both operate as “justice on the fly” and to convert any subsequent proceeding on certiorari into “what may be an ‘idle ceremony.’” Nken v. Holder, 556 U.S. 418, 427
23

(2009) (quoting Scripps–Howard Radio, Inc. v. FCC, 316 U.S. 4, 10 (1942)). The stay should therefore be lifted. II. EVERY COURT TO CONSIDER THE QUESTION HAS FOUND THAT
DEFENDANTS’ PLAN TO CIRCUMVENT CONGRESS IS UNLAWFUL, AND THAT JUDICIAL REVIEW IS AVAILABLE. In the time since the Court granted Defendants’ stay application, several courts have considered the legality of wall construction in excess of the $1.375 billion that Congress provided for in the CAA, and the viability of a cause of action to challenge it. Every one has come to the conclusion that Defendants are acting without any authority to spend billions of taxpayer dollars on a border wall, and that an equitable cause of action is available to address Defendants’ lawless action. A. Plaintiffs Have a Cause of Action. The court of appeals correctly found that Plaintiffs can proceed in equity to seek relief from ultra vires and unconstitutional actions by executive officers. “Where, as here, Congress could not more clearly and emphatically have withheld the authority exercised by DoD, with full consciousness of what it was doing and in the light of much recent history, and Sierra Club satisfies the rigors of Article III standing, our obligation to hear and decide this case is virtually unflagging.” App. 26a (quoting Youngstown, 343 U.S. at 602 (Frankfurter, J. concurring) and Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (citations, quotations, and alteration marks omitted)). In addition to the recent court of appeals ruling, several intervening decisions since this Court’s stay order confirm that Plaintiffs may call on the courts for protection from Defendants’ ultra vires attempts to circumvent Congress.
24

As a recent Seventh Circuit decision makes clear, separation-of-powers concerns rooted in congressional control over spending do not dissipate whenever the executive branch invokes an inapplicable statutory authority. In City of Chicago v. Barr, that court rejected the executive branch’s broad claims of statutory spending authority, which fell “far astray from the language, context and structure of the statute itself,” and “would raise potential constitutional and statutory concerns.” 961 F.3d 882, 906 (7th Cir. 2020). Writing for the court, Judge Rovner concluded that “[r]ather than an exercise of authority granted to it by the legislature,” the challenged actions were “an executive usurpation of the power of the purse.” Id. at 931. Altering the label did not alter the substance of the interest at stake: “Whether deemed a statutory or a constitutional violation, the executive’s usurpation of the legislature’s power of the purse implicates an interest that is fundamental to our government and essential to the protection against tyranny.” Id. at 919. Thus, even though the executive branch invoked a statute as justification for its actions, the court concluded that “the Attorney General exceeded the authority delegated by Congress” and this decision “violated the constitutional principle of separation of power.” Id. at 931. This accords with the conclusion of the court of appeals that Plaintiffs have a cause of action because “the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties[.]” App. 31a.
This Court also recently reaffirmed that parties who can trace their injuries to a separation of powers violation are entitled to call on the courts for protection. As
25

the Court reiterated, “we have found it sufficient that the challenger ‘sustain[s] injury’ from an executive act that allegedly exceeds the official’s authority.” Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2020 WL 3492641, at *8 (U.S. June 29, 2020) (quoting Bowsher v. Synar, 478 U.S. 714, 721 (1986)). The Court’s decision confirms its prior determination in Free Enterprise Fund v. Public Company Accounting Oversight Board that such claims are viable. In that case, “[t]he Government assert[ed] that ‘petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of powers principles.’” 561 U.S. 477, 491 n.2 (2010) (quoting Brief for United States at 22, Free Enter. Fund, 561 U.S. 477 (2010) (No. 08–861)). But, as the Court observed, private plaintiffs are entitled to such “relief as a general matter[.]” Id. (citing Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”)); see also Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (“The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”); accord App. 29a (“Where plaintiffs, like Sierra Club, establish that they satisfy the requirements of Article III standing, they may invoke separation-of-powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority.”)
26

Recent decisions from the district courts likewise recognize the viability of an ultra vires claim to challenge border wall construction, and confirm Judge Bork’s observation that it does not make sense to ask whether a plaintiff is within the zone of interests of a statute claimed to be inapplicable. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (“Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest.”); accord App. 38a n.14 (“[T]he relevant limitation here is not the inapplicable statutory power invoked by the Executive—Section 8005—but instead the restriction on unlawful action—the Appropriations Clause.”). As a court in the District of Columbia reasoned:
If the Government were to use a Medicare statute, for example, to justify building the border wall on someone’s property, it would make little sense to require that person to show that he was a Medicare beneficiary or provider to argue that the Medicare statute did not permit border barrier construction.
Ctr. for Biological Diversity, 2020 WL 1643657, at *25. Additional intervening district court decisions in Washington and Texas are in agreement. See State v. Trump, 2020 WL 949934, at *15 (“The Court concludes that the zone-of-interests test does not apply to Plaintiff's challenge to Defendants’ reliance on § 2808.”); El Paso County, 408 F. Supp. 3d at 856 n. 1 (agreeing that “the zone-of-interests test is inapposite” to ultra vires claims). These decisions all accord with longstanding D.C. Circuit recognition of the ongoing viability of ultra vires review. As Judge Silberman explained for that
27

court, the “enactment of the APA . . . does not repeal the review of ultra vires action recognized long before,” and “[w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (citation omitted).
But even if this Court were to hold for the first time that a statutory zone of interests limited the availability of an ultra vires or separation-of-powers challenge, the court of appeals decision in the companion case demonstrates that Plaintiffs— whose interests range from nearby property ownership to aesthetic and environmental interests in using the land—are at least arguably within that zone. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“[W]e have always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.”). In the companion case, the court of appeals joined the D.C. Circuit in recognizing the expansive scope of congressional interest in enforcing statutes aimed at tightening congressional control over executive spending: “The field of suitable challengers must be construed broadly in this context because, although Section 8005’s obligations were intended to protect Congress, restrictions on congressional standing make it difficult for Congress to enforce these obligations itself.” App. 115a; accord Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356, 1360-61 (D.C. Cir. 1996) (holding that statute that did not seek to “benefit anything other than the public fisc and Congress’s appropriation power” was enforceable by private plaintiff because “we run no risk that the outcome could in fact thwart the congressional goal” (citation and alteration
28

marks omitted)). Like the landowner in Match-E-Be-Nash-She-Wish, therefore, landowners and other users of land are suitable challengers to enforce limits on predicate administrative steps that lead directly to the alteration of land. Plaintiffs’ “stake in opposing” the circumvention of Congress’s protection of the lands they treasure is “intense and obvious,” and passes the “zone-of-interests test[, which] weeds out litigants who lack a sufficient interest in the controversy.” Patchak v. Salazar, 632 F.3d 702, 707 (D.C. Cir. 2011), aff’d sub nom, Match-E-Be-Nash-SheWish, 567 U.S. 209.
This Court has never before held that individuals facing injury due to unauthorized and unconstitutional government action should be shut out of court in the absence of Congress’s clear displacement of courts’ traditional equitable powers. Plaintiffs’ members own neighboring property. They fish, hike, study, use, and conserve the lands threatened by construction. They all face injuries traceable to Defendants’ disregard for Congress’s control over appropriations. Defendants’ position is that effectively no injured party can challenge their diversion of billions of dollars that Congress appropriated for other purposes, no matter how clearly unauthorized. But in the absence of any indication that Congress intended to prohibit judicial examination of the executive action here, Defendants’ efforts to circumvent congressional control over appropriations are the proper subject of this Court’s review. See Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (“Congress rarely intends to prevent courts from enforcing its directives to federal agencies.”); White Stallion Energy Ctr. v. EPA, 748 F.3d 1222, 1269 (2014) (Kavanaugh, J., concurring
29

in part and dissenting in part) (observing that under this Court’s “capacious view of the zone of interests requirement,” a “suit should be allowed unless the statute evinces discernible congressional intent to preclude review”).
B. Defendants have no authority to reconfigure the nation’s budget to circumvent Congress’s power of the purse. As every court to examine the question has found, no authority permits
Defendants to funnel billions of dollars to a wall that Congress refused to fund. Section 8005, by its terms, cannot be used to aggrandize the funding for “items” that have been “denied by the Congress.” And as the lower courts recognized, Congress denied the President’s request to fund any wall construction outside of Texas, and did not authorize the spending of billions of taxpayer dollars on the wall sections at issue here. The court of appeals therefore correctly held that “Congress’s broad and resounding denial resulting in a 35-day partial government shutdown must constitute a previous denial for purposes of Section 8005.” App. 129a; see also App. 232a (“The reality is that Congress was presented with—and declined to grant—a $5.7 billion request for border barrier construction.”); Sierra Club v. Trump, 929 F.3d at 691 (“Construing section 8005 with an eye towards the ordinary and common-sense meaning of ‘denied,’ real-world events in the months and years leading up to the 2019 appropriations bills leave no doubt that Congress considered and denied appropriations for the border barrier construction projects that DoD now seeks to finance using its section 8005 authority.”).
The longest partial government shutdown in U.S. history ended with Congress’s decision, “in a transparent process subject to great public scrutiny,” to
30

deny the administration’s request to construct hundreds of miles of wall outside of Texas. Sierra Club, 929 F.3d at 692. “To call that anything but a ‘denial’ is not credible.” Id. The President has himself confirmed what the record makes obvious: Congress refused to fund the very wall construction that Defendants are nonetheless pursuing. As the President conceded on September 18, 2019, the diversion of military funds was entirely occasioned by Congress’s refusal to accede to his funding demands: “We wanted Congress to help us. It would have made life very easy. And we still want them to get rid of loopholes, but we’ve done it a different way. . . We still want them to do it because it would be a little bit easier, but Congress wouldn’t do it.” Remarks by President Trump During Visit to the Border Wall, White House, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-visitborder-wall-san-diego-ca/ (Sept. 18, 2019).
Faced with this record, “to hold that Congress did not previously deny the Executive Branch’s request for funding to construct a border wall would be to ‘find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.’” App. 129a (quoting Youngstown, 343 U.S. at 609 (Frankfurter, J., concurring)); see also Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (“[T]his Court is ‘not required to exhibit a naiveté from which ordinary citizens are free.’” (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, C.J.))). In short: “‘No’ means no.” App. 129a.
But even if Congress’s denial was insufficiently clear, Defendants additionally lack authority because border wall construction is not an “unforeseen” military need,
31

as Section 8005 requires. The court of appeals correctly rejected Defendants’ argument that “unforeseen” should be equated with “unknown,” because “‘Congress’ choice of words is presumed to be deliberate’ and deserving of judicial respect.’” App. 123a (quoting SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018)). In line with its ordinary meaning, the “unforeseen” requirement has been met in the past by “unanticipated circumstances (such as hurricane and typhoon damage to military bases) justifying a departure from the scope of spending previously authorized by Congress.” App. 233a. As the court of appeals found, such circumstances are a far cry from the years-long border wall project Defendants repeatedly requested funding for and are now pursuing over Congress’s objection. Neither the “longstanding problem” of drug smuggling “nor the President’s purported solution”—a border wall—“was unanticipated or unexpected here.” App. 120a.
The record establishes that the asserted concern about drugs was not “unforeseen.” In February 2018, the President specifically claimed to Congress in his budget proposal that “$18 billion to fund the border wall” was necessary because “a border wall is critical to combating the scourge of drug addiction.” Fiscal Year 2019 Budget Request 16, Dist. Ct. ECF No. 168-2, Ex. 10 (RJN); see also App. 233a (“[T]hat the need for the requested border barrier construction funding was ‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018.”). And even if “unforeseen” could be interpreted as referring only to DoD’s participation in the wall project, rather than to the general “requirement” of a wall to combat drugs, the administration’s
32

arguments are belied by the record: DoD was specifically considering the use of Section 284 to construct sections of a border wall long before the actions at issue here. App. 122a–123a.
Moreover, it is implausible that Congress intended its own denial of the president’s funding request to constitute “unforeseen” circumstances. If that were the case, as the district court observed, agencies could evade any strictures Congress imposed on their funding simply by virtue of the timing of the request: “As here, DHS could wait and see whether Congress granted a requested appropriation, then turn to DoD if Congress declined, and DoD could always characterize the resulting request as raising an ‘unforeseen’ requirement because it did not come earlier.” App. 238a. This “heads-I-win-tails-you-lose” theory would upend the statute and the constitutional requirement that Congress authorize spending. Defendants’ position— that a Section 284 request is foreseen only at the moment it is received by DoD— “would swallow the rule and undermine Congress’s constitutional appropriations power,” and is “inconsistent with the purpose of Section 8005: to ‘tighten congressional control of the reprogramming process.’” App. 122a (quoting H.R. Rep. No. 93-662, at 16 (1973)).
Finally, the court of appeals correctly determined that DoD’s authority to provide limited support to civilian agencies, when Congress so appropriates, does not convert a civilian law enforcement request into a “military requirement” justifying a Section 8005 transfer. There is no dispute that the construction of barriers at issue here is a civilian project, and that DoD is here providing support to the civilian law-
33

enforcement agency. The court explained that “a request for this support without connection to any military function fails to rise to the level of a military requirement for purposes of Section 8005.” App. 127a. “To conclude that supporting projects unconnected to any military purpose or installation satisfies the meaning of ‘military requirement’ would effectively write the term out of Section 8005.” App. 128a. If the executive branch can convert any action taken for the benefit of another agency into a “military requirement” simply by having DoD take the action, the statutory phrase would impose no restriction at all. Such a reading violates the “presumption that statutory language is not superfluous.” McDonnell v. United States, 136 S. Ct. 2355, 2369 (2016) (quotation marks and citation omitted).
In sum, the court of appeals’ decision, issued subsequent to this Court’s stay, is plainly correct that Section 8005 does not provide an end run around Congress’s judgment. Congress considered and rejected Defendants’ request for border wall funding. The “fundamental and comprehensive purpose” of the Appropriations Clause “is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good . . . .” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 427–28 (1990). A multibillion-dollar raid on DoD’s budget is no substitute for the appropriations process. Defendants lack any authority for their actions.
34

CONCLUSION

The stay should be lifted.

Respectfully submitted,

/s/ Dror Ladin

Sanjay Narayan Gloria D. Smith SIERRA CLUB ENVIRONMENTAL LAW PROGRAM 2101 Webster Street, Suite 1300 Oakland, CA 94612 Vasudha Talla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 David Donatti Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS P.O. Box 8306 Houston, TX 77288

Dror Ladin Counsel of Record
Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 David D. Cole AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW Washington, D.C. 20005

Date: July 21, 2020

Attorneys for Applicants

35