State of California et al v. Trump et al

Filing 151

Response to the Court's May 13, 2019 Order 141 by Department of Defense, David Bernhardt, Mark T. Esper, Steven T. Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Filed on 5/15/2019) Modified on 5/16/2019 (cpS, COURT STAFF).

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JAMES M. BURNHAM
Deputy Assistant Attorney General
JOHN R. GRIFFITHS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
RACHAEL WESTMORELAND
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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No. 4:19-cv-00872-HSG
STATE OF CALIFORNIA, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.

DEFENDANTS’ RESPONSE TO
THE COURT’S MAY 13, 2019
ORDER
Hearing Date: May 17, 2019
Time: 10:00 a.m.
Place: Oakland Courthouse
Courtroom 2, 4th Floor

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order

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Defendants hereby submit the following response to the questions posed in the Court’s May

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13, 2019 Order regarding status of funds used for border barrier construction under the disputed

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statutes in this case.

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1.

Updated Information About the Status and/or Use of Funds
A.

Treasury Forfeiture Fund (TFF)

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As explained in Defendants’ opposition brief in the States’ case, TFF funds are being made

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available to U.S. Customs and Border Protection (CBP) in two tranches. See Defs’ Opp. at 9 (No.

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4:19-cv-00872, ECF No. 89). The first tranche of $242 million was made available to CBP for

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obligation on March 14, 2019. Id. CBP will be obligating the first $242 million through an Interagency

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Agreement with the U.S. Army Corps of Engineers. See Third Declaration of Loren Flossman ¶ 4

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(May 14, 2019) (attached as Exhibit 1). CBP will retain a small portion of the $242 million for program

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support on the TFF funded projects. Id. The Interagency Agreement will likely be in place by June

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2019. The second tranche of $359 million is expected to be made available for obligation at a later

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date upon Treasury’s receipt of additional anticipated forfeitures. See Defs’ Opp. at 9.

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CBP plans to use TFF funds exclusively for projects in the Rio Grande Valley Sector. See

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Third Flossman Decl. ¶ 5. CBP may use some TFF funds for planning related to barrier construction

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projects in other sectors, but no decisions have been made to use TFF funds for that purpose. Id.

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B.

10 U.S.C. § 284 & § 8005 of the DoD Appropriations Act

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On May 13, 2019, Defendants submitted the Second Declaration of Kenneth Rapuano that

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provides updated information about the Department of Defense’s (DoD) use of 10 U.S.C. § 284 & §

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8005 of the DoD Appropriations Act for Fiscal Year 2019. Mr. Rapuano’s declaration updates the

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status of the project identified as Yuma Sector Project 2 and states that the U.S. Army Corps of

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Engineers has decided not to fund or construct this project under § 284 or § 8005 See Second Rapuano

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Decl. ¶ 4. Additionally, Mr. Rapuano’s second declaration explains that, on May 9, 2019, the Acting

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Secretary of Defense authorized the funding of four additional CBP-requested projects using § 284.

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Id. ¶ 6. One project is located in California (El Centro Project 1), and three projects are located in

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Arizona (Tucson Sector Projects 1, 2, and 3). Id.; see also First Rapuano Decl., Ex. A (describing project

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locations). To fund these four projects, the Acting Secretary of Defense decided to use DoD’s general

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order
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transfer authority under § 8005 of the DoD Appropriations Act, 2019 (Pub. L. 115-235), and § 1001

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of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) (Pub. L.

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115-232), as well as DoD’s special transfer authority under § 9002 of the DoD Appropriations Act

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and § 1512 of the NDAA, to transfer $1.5 billion between DoD appropriations. See Second Rapuano

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Decl. ¶ 7. Specifically, the Acting Secretary of Defense determined that the four projects will be

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funded through a transfer of $1.5 billion to the counter-narcotics support line of the Drug Interdiction

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and Counter-Drug Activities, Defense, account. See id. On May 9, 2019, the DoD Comptroller

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initiated the reprogramming to transfer these funds. See Third Declaration of Kenneth Rapuano ¶ 4

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(May 15, 2019) (attached as Exhibit 2).1 On May 15, 2019, the Acting Secretary of Homeland Security

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exercised his authority under § 102(c)(1) of the Illegal Immigration Reform and Immigrant

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Responsibility Act of 1996, as Amended, to issue waivers for the four projects. See Determinations

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Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

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as Amended, 84 Fed. Reg. 21798-21801 (May 15, 2019). The U.S. Army Corps of Engineers expects

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to award contracts for the four projects by May 16, 2019, and construction will begin no earlier than

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45 days after the award of the contracts. See Second Rapuano Decl. ¶¶ 10-11.

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Mr. Rapuano’s declaration also stated that a contract is expected to be awarded by May 16,

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2019, for the project identified as Yuma Sector Project 1. See Second Rapuano Decl. ¶ 10. A contract

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had previously been awarded for this project on April 9, 2019, see First Rapuano Decl. ¶ 8, but in

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response to a bid protest filed with the Government Accountability Office (GAO), see

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www.gao.gov/docket/B-417499.1, the U.S. Army Corps of Engineers took corrective action to

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remedy the alleged procurement mistake and terminated the contract on May 4, 2019. The U.S. Army

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Corps of Engineers resolicited bids for the contract on May 5, 2019, and a new contract is expected

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to be awarded by May 16, 2019. See Second Rapuano Decl. ¶ 10.

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Additionally, the contract that the U.S. Army Corps of Engineers awarded to SLSCO Ltd. of

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Galveston, Texas ($789 million) on April 9, 2019, see First Rapuano Decl. ¶ 8, to perform work in

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support of El Paso Sector Project 1 is currently the subject of bid protest litigation in the United States

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Mr. Rapuano’s second declaration stated that the reprogramming actions were initiated on
May 10, but the reprogramming actions actually occurred on May 9. See Third Rapuano Decl. ¶ 4.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order
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Court of Federal Claims. See Fisher Sand & Gravel v. United States, No. 19-615C (Fed. Cl.). The court

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is scheduled to hold a sealed hearing on May 16, 2019, to address the merits of the plaintiff’s challenge

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to the agency’s decision to override an automatic stay of contract performance. See id. (ECF Nos. 24,

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34).

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C.

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10 U.S.C. § 2808

On May 6, 2019, the Chairman of the Joints Chiefs of Staff submitted an assessment to the

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Acting Secretary of Defense addressing whether and how military construction projects could

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support the use of the armed forces in addressing the national emergency at the southern border.

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See Third Rapuano Decl. ¶ 5. This internal assessment provides the Acting Secretary of Defense

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with information and recommendations about specific border barrier construction projects

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identified by the Department of Homeland Security. Id. The Chairman’s assessment analyzes

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various factors and is intended to inform the Acting Secretary’s determination whether specific

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barrier construction projects are necessary to support the use of the armed forces and which specific

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projects to undertake. Id. The Acting Secretary of Defense has taken no action on the assessment

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and has not yet decided to undertake or authorize any barrier construction projects under § 2808.

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Id.

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Also on May 6, 2019, the Under Secretary of Defense (Comptroller)/Chief Financial Officer

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identified existing unawarded military construction projects of sufficient value to provide up to $3.6

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billion of funding for potential border barrier construction pursuant to § 2808. Id. ¶ 6. The

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Comptroller reviewed the pool of current unawarded military construction projects with award dates

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after September 30, 2019. Id. As directed by the Acting Secretary of Defense, the Comptroller

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excluded from consideration military housing, barracks, or dormitory projects, as well as military

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construction projects that already have been awarded. Id. The Acting Secretary of Defense has

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taken no action on this information and has not yet decided to undertake or authorize any barrier

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construction projects § § 2808. Id.

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The Acting Secretary of Defense is not expected to make a decision regarding any projects

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under § 2808 prior to May 22, 2019. Id. ¶ 7. Once a decision is made, the Government will inform

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the Court.

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order
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2.

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To date, the Acting Secretary of Defense has authorized $2.5 billion in border barrier

DoD Funding For Support to DHS Under 10 U.S.C. § 284(b)(7)

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construction support under 10 U.S.C. § 284(b)(7). Id. ¶ 3. The Acting Secretary of Defense does

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not intend, and is not currently planning, to provide additional border barrier construction support

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to DHS under § 284(b)(7) during the next six months. Id.

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Of this $2.5 billion total, $1,818,465,000 is attributable to transfers of funds to the counter-

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narcotics support line of the Drug Interdiction and Counter-Drug Activities, Defense, account

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pursuant to § 8005 of the DoD Appropriations Act and § 1001 of the NDAA. $1 billion was

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transferred on March 25, 2018, see First Rapuano Decl. ¶ 5, Ex. C & D, and $818,464,000 was

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transferred on May 9, 2019, see Second Rapuano Decl. ¶ 7, Ex. B; Third Rapuano Decl. ¶ 4, Ex. A.2

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The remaining $681,535,000 was transferred to the counter narcotics support line on May 9, 2019

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pursuant to DoD’s special transfer authority under § 9002 of the DoD Appropriations Act and

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§ 1512 of the NDAA. See Third Rapuano Decl. ¶ 4, Ex. A. Section 9002 of the DoD

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Appropriations Act incorporates the requirements of § 8005 by reference and § 1512 of NDAA

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incorporates the requirements of § 1001 by reference.
At the time of the initial transfer of funds on March 25, 2019, the counter-narcotics support

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line appropriation had a total of $238,306,000 in unobligated funds. See First Rapuano Decl. ¶ 5, Ex.

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D at 2.

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DATE: May 15, 2019

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JAMES M. BURNHAM
Deputy Assistant Attorney General

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JOHN G. GRIFFITHS
Director, Federal Programs Branch

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ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch

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Respectfully submitted,

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Exhibit A is an updated and signed version of the transfer notice that was provided to
Congress on May 10, 2019. See Third Rapuano Decl. It replaces Exhibit C to the Second Rapuano
Declaration. Id.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order
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/s/ Andrew I. Warden
ANDREW I. WARDEN
Senior Trial Counsel (IN Bar No. 23840-49)
RACHAEL L. WESTMORELAND
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defs’ Response to Court’s May 13 Order
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