State of California et al v. Trump et al

Filing 165

ORDER by Hon. Haywood S. Gilliam, Jr., DENYING 59 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)

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Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 1 of 36 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 STATE OF CALIFORNIA, et al., 7 Plaintiffs, 8 v. 9 DONALD J. TRUMP, et al., 10 Defendants. 11 United States District Court Northern District of California Case No. 19-cv-00872-HSG ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Re. Dkt. No. 59 12 On February 18, 2019, a coalition of sixteen states filed suit against Defendants Donald J. 13 14 Trump, in his official capacity as President of the United States; the United States; the U.S. 15 Department of Defense (“DoD”); Patrick M. Shanahan, in his official capacity as Acting Secretary 16 of Defense; Mark T. Esper, in his official capacity as Secretary of the Army; Richard V. Spencer, 17 in his official capacity as Secretary of the Navy; Heather Wilson, in her official capacity as 18 Secretary of the Air Force; the U.S. Department of the Treasury; Steven T. Mnuchin, in his official 19 capacity as Secretary of the Department of the Treasury; the U.S. Department of the Interior; 20 David Bernhardt, in his official capacity as Secretary of the Interior1; the U.S. Department of 21 Homeland Security (“DHS”); and Kevin K. McAleenan, in his official capacity as Acting 22 Secretary of Homeland Security2 (collectively, “Federal Defendants”). Dkt. No. 1. The next day, 23 Sierra Club and Southern Border Communities Coalition (collectively, “Citizen Group Plaintiffs” 24 or “Citizen Groups”) brought a related suit against many, but not all, of the same Federal 25 Defendants. See Complaint, Sierra Club v. Trump, No. 4:19-cv-00892-HSG, (N.D. Cal. Feb. 19, 26 27 28 1 Secretary Bernhardt was named in his then-capacity as Acting Secretary, but was subsequently confirmed as Secretary by the U.S. Senate on April 11, 2019. 2 Acting Secretary McAleenan is automatically substituted for former Secretary Kirstjen M. Nielsen. See Fed. R. Civ. P. 25(d). Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 2 of 36 1 2019), ECF No. 1. Plaintiffs here filed an amended complaint on March 13, 2019, with the state 2 coalition now constituting twenty states (collectively, “Plaintiff States” or “States”). See Dkt. No. 3 47 (“FAC”). 4 Now pending before the Court is Plaintiffs’ motion for a preliminary injunction, briefing 5 for which is complete. See Dkt. Nos. 59 (“Mot.”), 89 (“Opp.”), 112 (“Reply”). The Court held a 6 hearing on this motion on May 17, 2019. See Dkt. No. 159. In short, Plaintiffs seek to prevent 7 executive officers from using redirected federal funds for the construction of a barrier on the U.S.- 8 Mexico border. 9 It is important at the outset for the Court to make clear what this case is, and is not, about. The case is not about whether the challenged border barrier construction plan is wise or unwise. It 11 United States District Court Northern District of California 10 is not about whether the plan is the right or wrong policy response to existing conditions at the 12 southern border of the United States. These policy questions are the subject of extensive, and 13 often intense, differences of opinion, and this Court cannot and does not express any view as to 14 them. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (indicating that the Supreme Court 15 “express[ed] no view on the soundness of the policy” at issue there); In re Border Infrastructure 16 Envtl. Litig., 284 F. Supp. 3d 1092, 1102 (S.D. Cal. 2018) (noting that the court “cannot and does 17 not consider whether underlying decisions to construct the border barriers are politically wise or 18 prudent”). Instead, this case presents strictly legal questions regarding whether the proposed plan 19 for funding border barrier construction exceeds the Executive Branch’s lawful authority under the 20 Constitution and a number of statutes duly enacted by Congress. See In re Aiken Cty., 725 F.3d 21 255, 257 (D.C. Cir. 2013) (“The underlying policy debate is not our concern. . . . Our more 22 modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set 23 by Congress.”). 24 Assessing whether Defendants’ actions not only conform to the Framers’ contemplated 25 division of powers among co-equal branches of government but also comply with the mandates of 26 Congress set forth in previously unconstrued statutes presents a Gordian knot of sorts. But the 27 federal courts’ duty is to decide cases and controversies, and “[t]hose who apply the rule to 28 particular cases, must of necessity expound and interpret that rule.” See Marbury v. Madison, 1 2 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 3 of 36 1 Cranch 137, 177 (1803). Rather than cut the proverbial knot, however, the Court aims to untie 2 it—no small task given the number of overlapping legal issues. And at this stage, the Court then 3 must further decide whether Plaintiffs have met the standard for obtaining the extraordinary 4 remedy of a preliminary injunction pending resolution of the case on the merits. After carefully considering the parties’ arguments, the Court DENIES Plaintiffs’ motion.3 5 6 I. LEGAL STANDARD 7 A preliminary injunction is a matter of equitable discretion and is “an extraordinary 8 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 9 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking preliminary injunctive relief must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer 11 United States District Court Northern District of California 10 irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, 12 and that an injunction is in the public interest.” Id. at 20. Alternatively, an injunction may issue 13 where “the likelihood of success is such that serious questions going to the merits were raised and 14 the balance of hardships tips sharply in [the plaintiff’s] favor,” provided that the plaintiff can also 15 demonstrate the other two Winter factors. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 16 1131–32 (9th Cir. 2011) (citation and internal quotation marks omitted). Under either standard, 17 Plaintiffs bear the burden of making a clear showing that they are entitled to this extraordinary 18 remedy. Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). The most important 19 Winter factor is likelihood of success on the merits. See Disney Enters., Inc. v. VidAngel, Inc., 869 20 F.3d 848, 856 (9th Cir. 2017). 21 II. ANALYSIS In the pending motion, Plaintiffs seek to enjoin Defendants from using certain diverted 22 23 federal funds and resources for border barrier construction. Specifically, Plaintiffs move to enjoin 24 Defendants from: (1) invoking Section 8005’s reprogramming authority to channel funds into 25 DoD’s drug interdiction fund, (2) invoking Section 284 to divert monies from DoD’s drug 26 27 28 3 The relevant background for this and the Citizen Groups’ action is the same. The Court thus incorporates in full here the factual background and statutory framework as set forth in its preliminary injunction order in the Citizen Groups’ action. See Order, Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. May 24, 2019), ECF No. 144. 3 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 4 of 36 1 interdiction fund for border barrier construction on the southern border of New Mexico, (3) 2 invoking Section 9705 to divert monies from the Treasury Forfeiture Fund for border barrier 3 construction,4 and (4) taking any further action related to border barrier construction until 4 Defendants comply with NEPA. Defendants oppose each basis for injunctive relief. Defendants further contend that (1) the 5 6 Plaintiffs lack standing to bring their Sections 8005 and 9705 claims, and (2) the Court is not the 7 proper venue to challenge border barrier construction in New Mexico. The Court addresses these 8 threshold issues first before turning to Plaintiffs’ individual bases for injunctive relief. 9 A. Article III Standing A plaintiff seeking relief in federal court bears the burden of establishing “the irreducible 10 United States District Court Northern District of California 11 constitutional minimum” of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) 12 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). First, the plaintiff must have 13 “suffered an injury in fact.” Id. This requires “an invasion of a legally protected interest” that is 14 concrete, particularized, and actual or imminent, rather than conjectural or hypothetical. Lujan, 15 504 U.S. at 560 (internal quotation marks omitted). Second, the plaintiff’s injury must be “fairly 16 traceable to the challenged conduct of the defendant.” Spokeo, 136 S. Ct. at 1547. Third, the 17 injury must be “likely to be redressed by a favorable judicial decision.” Id. (citing Lujan, 504 U.S. 18 at 560–61). “States are not normal litigants for the purposes of invoking federal jurisdiction,” and are 19 20 “entitled to special solicitude in [the] standing analysis.” Massachusetts v. EPA, 549 U.S. 497, 21 518–20 (2007). For instance, states may sue to assert their “quasi-sovereign interest in the health 22 and well-being—both physical and economic—of [their] residents in general.” Alfred L. Snapp & 23 Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982). In that case, however, the “interest must be 24 sufficiently concrete to create an actual controversy between the State and the defendant” such that 25 the state is more than a nominal party. Id. at 602. 26 // 27 28 4 Only the State Plaintiffs challenge the diversion of funds under Section 9705. 4 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 5 of 36 1. 1 New Mexico Has Standing for Its Section 8005 Claim. Only New Mexico contends that it has standing to challenge Defendants’ reprogramming 2 of funds under Section 8005. See Reply at 2 (arguing that “Defendants’ actions [under Section 4 8005] will cause concrete and particularized injuries-in-fact to New Mexico’s environment and 5 wildlife, giving New Mexico standing”). Defendants argue that New Mexico lacks standing to 6 challenge Defendants’ invocation of Section 8005 to reprogram funds into the drug interdiction 7 fund, so that Defendants can then divert that money wholesale to border barrier construction using 8 Section 284. See Opp. at 17–18.5 Defendants do not dispute that New Mexico has standing to 9 challenge the use of funds from the drug interdiction fund for border barrier construction under 10 Section 284. Defendants nonetheless reason that harm from construction using drug interdiction 11 United States District Court Northern District of California 3 funds under Section 284 does not establish standing to challenge Defendants’ use of Section 8005 12 to supply those funds. Id. at 17. Defendants argue that standing requires that the plaintiff be the 13 “object” of the challenged agency action, but that the Section 8005 augmentation of the drug 14 interdiction fund and the use of that money for construction are “two distinct agency actions.” Id. 15 at 17–18 (citing Lujan, 504 U.S. at 562). According to Defendants, the “object” of the Section 16 8005 reprogramming was “simply mov[ing] funds among DoD’s accounts.” Id. (citing Lujan, 504 17 U.S. at 562). Defendants’ logic fails in all respects. As an initial matter, it is not credible to suggest that 18 19 the “object” of the Section 8005 reprogramming is anything but border barrier construction, even 20 if the reprogrammed funds make a pit stop in the drug interdiction fund. Since Defendants first 21 announced that they would reprogram funds using Section 8005, they have uniformly described 22 the object of that reprogramming as border barrier construction. See Dkt. No. 89-10 (“Rapuano 23 Decl.”) ¶ 5 (providing that “the Acting Secretary of Defense decided to use DoD’s general transfer 24 authority under section 8005 . . . to transfer funds between DoD appropriations to fund [border 25 barrier construction in Arizona and New Mexico]”); id. Ex. D, at 1 (notifying Congress that the 26 27 28 Defendants also argue New Mexico lacks standing because it falls outside Section 8005’s “zone of interests.” See Opp. at 18–19. Because the Court finds Defendants’ “zone of interests” challenge derivative of Defendants’ misunderstanding of ultra vires review, the Court addresses those matters together, below. See infra Section II.C.1. 5 5 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 6 of 36 1 “reprogramming action” under Section 8005 is for “construction of additional physical barriers 2 and roads in the vicinity of the United States border”). 3 Nor does Lujan impose Defendants’ proffered strict “object” test. The Lujan Court 4 explained that “when the plaintiff is not himself the object of the government action or inaction he 5 challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.” 6 504 U.S. at 562 (internal quotation marks omitted). And the Supreme Court was concerned in 7 particular with “causation and redressability,” which are complicated inquiries when a plaintiff’s 8 standing “depends on the unfettered choices made by independent actors not before the courts and 9 whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.” Id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (Kennedy, J.)). As 11 United States District Court Northern District of California 10 concerns causation, the Ninth Circuit recently explained that Article III standing only demands a 12 showing that the plaintiff’s injury is “fairly traceable to the challenged action of the defendant, and 13 not the result of the independent action of some third party not before the court.” Mendia v. 14 Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 15 (1997)). “Causation may be found even if there are multiple links in the chain connecting the 16 defendant’s unlawful conduct to the plaintiff’s injury, and there’s no requirement that the 17 defendant’s conduct comprise the last link in the chain. As we’ve said before, what matters is not 18 the length of the chain of causation, but rather the plausibility of the links that comprise the 19 chain.” Id. (internal quotation marks and citations omitted). 20 No complicated causation inquiry is necessary here, as there are no independent absent 21 actors. More important, if there were ever a case where standing exists even though the 22 challenged government action is nominally directed to some different “object,” this is it. Neither 23 the parties nor the Court harbor any illusions that the point of reprogramming funds under Section 24 8005 is to use those funds for border barrier construction. And under Ninth Circuit law, there is 25 no requirement that the challenged conduct be the last link in the causal chain. Rather, even if 26 there is an intervening link between the Section 8005 reprogramming and the border barrier 27 construction itself, any injury caused by the border barrier construction is nonetheless “fairly 28 traceable” to the Section 8005 reprogramming under the circumstances. See id. The Court thus 6 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 7 of 36 1 cannot accept the Government’s “two distinct actions” rationale as a basis for shielding 2 Defendants’ actions from review. 3 2. Plaintiffs Have Standing for Their Section 9705 Claim. Defendants argue that no state has standing to challenge the Treasury’s decision to allocate 4 Treasury Forfeiture Fund (“TFF”) money to border barrier construction because that decision 6 “does not jeopardize the solvency of the TFF or negatively impact the States’ receipt of future 7 equitable sharing money.” Opp. at 12. Defendants thus posit that “[t]he States have not 8 established that the challenged action will cause them any injury.” Id. at 14. As support, 9 Defendants rely on the declaration of the Director of the Treasury’s Executive Office for Asset 10 Forfeiture (“TEOAF”), John M. Farley, who manages the TFF. Dkt. No. 89-9 (“Farley Decl.”) 11 United States District Court Northern District of California 5 ¶ 2. Mr. Farley assures that the Treasury has adequately accounted for mandatory and priority 12 expenses in such a way that there is no risk to the TFF’s solvency in general or to any equitable 13 sharing payments specifically. Id. at 13–14. Defendants, however, do not address Plaintiffs’ 14 evidence to support standing, which includes recent statements from TEOAF that a “substantial 15 drop in ‘base’ revenue,” which “is relied upon to cover basic mandatory [TFF] costs . . . is 16 especially troubling,” even before the $601 million diversion. Dkt. No. 59-4 (“States RJN”) Ex. 17 43, at 46; Mot. at 12. Defendants ask too much of Plaintiffs. A plaintiff need not present undisputable proof of a 18 19 future harm. The injury-in-fact requirement instead permits standing when a risk of future injury 20 is “at least imminent.” See Lujan, 504 U.S. at 564 n.2. And while courts must ensure that the 21 “actual or imminent” measure of harm is not “stretched beyond its purpose, which is to ensure that 22 the alleged injury is not too speculative for Article III purposes,” see id., the Ninth Circuit has 23 consistently held that a “‘credible threat’ that a probabilistic harm will materialize” is enough, see 24 Nat. Res. Def. Council v. EPA, 735 F.3d 873, 878 (9th Cir. 2013) (quoting Covington v. Jefferson 25 26 27 28 The Court takes judicial notice of various documents, for reasons set forth in the Court’s preliminary injunction order in the Citizen Groups’ action. See Order, Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. May 24, 2019), ECF No. 144, at 3 n.2; see also Request for Judicial Notice, Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Apr. 4, 2019), ECF No. 36 (“Citizen Groups RJN”). 7 6 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 8 of 36 1 Cty., 358 F.3d 626, 641 (9th Cir. 2004)). 2 At this stage, Plaintiff States have carried their burden to demonstrate that there is a 3 “credible threat” that Defendants’ diversion of TFF funds will have economic ramifications on the 4 states. If the only information before the Court were bald allegations questioning the TFF’s 5 solvency and the States’ prospects of future equitable sharing payments on the one hand, and Mr. 6 Farley’s declaration assuaging those concerns on the other, then whether Plaintiffs could 7 demonstrate a “credible threat” would be a closer call. But that is not the case. Plaintiffs instead 8 cite to recent statements by the Treasury characterizing “especially troubling” drops in revenue 9 which call into question its ability to cover “basic mandatory [TFF] costs.” See States RJN 43, at 4. The Court finds these statements demonstrate a “credible threat,” such that Plaintiffs have 11 United States District Court Northern District of California 10 satisfied the injury-in-fact requirement for Article III standing. See Nat. Res. Def. Council, 735 12 F.3d at 878. 13 B. 14 Because Defendants challenge Plaintiffs’ standing as to all claims except New Mexico’s Venue is Proper in This Court. 15 Section 284 claim, Defendants assert that New Mexico is the only Plaintiff that can plausibly state 16 an alleged injury and thus that venue is improper in the Northern District of California. Opp. at 17 30. But New Mexico’s ability to seek relief in this Court relies on California having standing, 18 which the parties do not dispute would render venue proper for all claims in this case. Because the 19 Court finds that California has independent Article III standing, the Court finds venue is proper. 20 See 28 U.S.C. § 1391(e)(1) (providing that venue is proper in actions against officers or 21 employees of the United States where a “plaintiff resides if no real property is involved in the 22 action”). 23 C. 24 Applying the Winter factors, the Court finds Plaintiffs are not entitled to a preliminary 25 26 27 28 Plaintiffs Have Not Shown They Are Entitled to a Preliminary Injunction. injunction at this time. 1. Likelihood of Success on the Merits The crux of Plaintiffs’ case is that Defendants’ methods for funding border barrier construction are unlawful. And Plaintiffs package that core challenge in several ways. For 8 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 9 of 36 1 present purposes, Plaintiffs contend that Defendants’ actions (1) are unconstitutional, (2) exceed 2 Defendants’ statutory authority—in other words, are ultra vires—(3) violate the APA because 3 they are arbitrary and capricious, and (4) violate NEPA. The Court begins with a discussion of the law governing the appropriation of federal funds. 4 5 Under the Appropriations Clause of the Constitution, “No Money shall be drawn from the 6 Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. 7 “The Clause’s words convey a ‘straightforward and explicit command’: No money ‘can be paid 8 out of the Treasury unless it has been appropriated by an act of Congress.’” U.S. Dep’t of Navy v. 9 FLRA, 665 F.3d 1339, 1346 (D.C. Cir. 2012) (quoting OPM v. Richmond, 496 U.S. 414, 424 (1990)). “The Clause has a ‘fundamental and comprehensive purpose . . . to assure that public 11 United States District Court Northern District of California 10 funds will be spent according to the letter of the difficult judgments reached by Congress as to the 12 common good and not according to the individual favor of Government agents.’” United States v. 13 McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016) (quoting Richmond, 496 U.S. at 427–28). It 14 “protects Congress’s exclusive power over the federal purse,” and “prevents Executive Branch 15 officers from even inadvertently obligating the Government to pay money without statutory 16 authority.” FLRA, 665 F.3d at 1346–47 (internal quotation marks and citations omitted). “Federal statutes reinforce Congress’s control over appropriated funds,” and under federal 17 18 law “appropriated funds may be applied only ‘to the objects for which the appropriations were 19 made.’” Id. at 1347 (quoting 31 U.S.C. § 1301(a)). Moreover, “[a]n amount available under law 20 may be withdrawn from one appropriation account and credited to another or to a working fund 21 only when authorized by law.” 31 U.S.C. § 1532. “[A]ll uses of appropriated funds must be 22 affirmatively approved by Congress,” and “the mere absence of a prohibition is not sufficient.” 23 FLRA, 665 F.3d at 1348. In summary, “Congress’s control over federal expenditures is 24 ‘absolute.’” Id. (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 25 1992)). 26 Rather than dispute these principles, Defendants contend that the challenged conduct 27 complies with them. See Opp. at 26 (“The Government is not relying on independent Article II 28 authority to undertake border construction; rather, the actions alleged are being undertaken 9 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 10 of 36 1 pursuant to express statutory authority.”). Accordingly, one of the key issues in dispute is whether 2 Congress in fact provided “express statutory authority” for Defendants’ challenged actions. Turning to Plaintiffs’ claims, it is necessary as a preliminary matter to outline the measure 3 4 and lens of reviewability the Court applies in assessing such broad challenges to actions by 5 executive officers. As a first principle, the Court finds that it has authority to review each of 6 Plaintiffs’ challenges to executive action. “It is emphatically the province and duty of the judicial 7 department to say what the law is.” Marbury, 1 Cranch at 177. In determining what the law is, 8 the Court has a duty to determine whether executive officers invoking statutory authority exceed 9 their statutory power. See Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). And even where executive officers act in conformance with statutory authority, the Court 11 United States District Court Northern District of California 10 has an independent duty to determine whether authority conferred by act of the legislature 12 nevertheless runs afoul of the Constitution. See Clinton v. City of New York, 524 U.S. 417, 448 13 (1998). 14 Once a case or controversy is properly before a court, in most instances that court may 15 grant injunctive relief against executive officers to enjoin both ultra vires acts—that is, acts 16 exceeding the officers’ purported statutory authority—and unconstitutional acts. The Supreme 17 Court recently reaffirmed this broad equitable power: 18 19 20 21 22 23 24 25 26 It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials. . . . What our cases demonstrate is that, in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer. 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 (internal quotation marks and citations omitted). Misunderstanding the presumptive availability of equitable relief to enforce federal law, 27 Defendants contend that Plaintiffs may only challenge Defendants’ conduct through the 28 framework of the APA, and ignore Plaintiffs’ ultra vires challenges entirely. See Opp. at 12 10 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 11 of 36 1 (“Because Congress did not create a private right of action to enforce the statutes that form the 2 basis of the States’ challenge, their claims are governed by the [APA], 5 U.S.C. § et seq.”) But as 3 the Citizen Group Plaintiffs detail at length in their reply brief, ultra vires review exists outside of 4 the APA framework. See Plaintiffs’ Reply at 2–5, Sierra Club v. Trump, No. 4:19-cv-00892-HSG 5 (N.D. Cal. May 2, 2019), ECF No. 91 (“Citizen Groups Reply”); see also Dkt. No. 129 (Brief of 6 Amici Curiae Federal Courts Scholars).7 Due to their mistaken framing of the scope of ultra vires review, Defendants also 7 incorrectly posit that Plaintiffs must establish that they fall within the “zone of interests” of a 9 particular statute to challenge actions taken by the government under that statute. See Opp. at 18– 10 19. The “zone of interests” test, however, only relates to statutorily-created causes of action. See 11 United States District Court Northern District of California 8 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014) (explaining that 12 “[t]he modern ‘zone of interests’ formulation . . . . applies to all statutorily created causes of 13 action”). The test has no application in an ultra vires challenge, which operates outside of the 14 APA framework. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) 15 (“Appellants need not, however, show that their interests fall within the zones of interests of the 16 constitutional and statutory powers invoked by the President in order to establish their standing to 17 challenge the interdiction program as ultra vires.”); see also 33 Charles Alan Wright et al., Federal 18 Practice and Procedure § 8302 (2d ed. 2019) (explaining that the “zone of interests” test is to 19 determine whether a plaintiff “seeks to protect interests that ‘arguably’ fall within the ‘zone of 20 interests’ protected by that provision”). In other words, where a plaintiff seeks to vindicate a right 21 protected by a statutory provision, the plaintiff must demonstrate that it arguably falls within the 22 zone of interests Congress meant to protect by enacting that provision. But where a plaintiff seeks 23 equitable relief against a defendant for exceeding its statutory authority, the zone-of-interests test 24 25 26 27 28 Congress may displace federal courts’ equitable power to enjoin unlawful executive action, but 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 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 foreclose equitable relief or provide an express administrative remedy, which might warrant a finding of implied foreclosure of equitable relief. 11 7 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 12 of 36 1 is inapposite. Any other interpretation would lead to absurd results. The very nature of an ultra 2 vires action posits that an executive officer has gone beyond what the statute permits, and thus 3 beyond what Congress contemplated. It would not make sense to demand that Plaintiffs—who 4 otherwise have standing—establish that Congress contemplated that the statutes allegedly violated 5 would protect Plaintiffs’ interests. It is no surprise, then, that the Supreme Court’s recent 6 discussion of ultra vires review in Armstrong did not once reference this test. In reviewing the lawfulness of Defendants’ conduct, the Court thus begins each inquiry by 7 8 determining whether the disputed action exceeds statutory authority. For unless an animating 9 statute sanctions a challenged action, a court need not reach the second-level question of whether it would be unconstitutional for Congress to sanction such conduct. See Nw. Austin Mun. Util. 11 United States District Court Northern District of California 10 Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (explaining the “well-established principle 12 governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide 13 a constitutional question if there is some other ground upon which to dispose of the case”) 14 (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)). This is not to say, 15 however, that the yardstick of statutory authority overlooks constitutional concerns entirely. “The 16 so-called canon of constitutional avoidance . . . counsel[s] that ambiguous statutory language be 17 construed to avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 18 502, 516 (2009). Nonetheless, a court presented with both ultra vires and constitutional claims 19 should begin by determining whether the statutory authority supports the action challenged, and 20 only reach the constitutional analysis if necessary.8 21 // 22 // 23 24 25 26 27 28 8 The Court finds it need not address Plaintiffs’ claim that the use of the various reprogramming and diversion mechanisms is arbitrary and capricious under the APA. Plaintiffs’ APA arguments are largely repackaged ultra vires claims. See, e.g., Reply at 15 (arguing it is arbitrary and capricious to act in excess of statutory authority). To the extent Plaintiffs’ APA claim is based on Defendants’ alleged departure from internal procedure concerning Section 8005 reprogramming, the Court finds Plaintiffs’ are unlikely to succeed on the merits of that argument. Among other reasons, this sort of DoD procedure does not appear to be the kind of “binding internal policy” that might demand an explanation if departed from. Cf. Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 852 (9th Cir. 2003) (involving an agency’s departure from a formally promulgated policy). 12 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 13 of 36 a. 1 Sections 284 and 8005 At the President’s direction, Defendants intend to divert $2.5 billion, $1 billion of which is 2 the subject of the pending motion, to the DoD’s drug interdiction fund for border barrier 4 construction.9 To do so, Defendants rely on Section 284(b)(7), which authorizes the Secretary of 5 Defense to support other federal agencies for the “[c]onstruction of roads and fences and 6 installation of lighting to block drug smuggling corridors across international boundaries of the 7 United States.” See The Funds Available to Address the National Emergency at Our Border, The 8 White House, 9 emergency-border (Feb. 26, 2019). To satisfy the President’s directive, Defendants intend to rely 10 on their reprogramming authority under Section 8005, and plan to “augment” the drug interdiction 11 United States District Court Northern District of California 3 fund with the entire $2.5 billion in funds that DoD will then use for the construction. Id. Plaintiffs challenge both the augmentation of the drug interdiction fund through Section 12 13 8005 and the use of funds from the drug interdiction fund under Section 284. Turning first to the 14 augmentation of funds, Section 8005 authorizes the reprogramming of up to $4 billion “of 15 working capital funds of the Department of Defense or funds made available in this Act to the 16 Department of Defense.” The transfer must be (1) either (a) DoD working capital funds or (b) 17 “funds made available in this Act to the [DoD] for military functions (except military 18 construction),” (2) first determined by the Secretary of Defense as necessary in the national 19 interest, (3) for higher priority items than those for which originally appropriated, (4) based on 20 unforeseen (5) military requirements, and (6) in no case where the item for which funds are 21 requested has been denied by Congress. Plaintiffs argue that Defendants’ actions fail the last three 22 requirements. The Court first considers whether the reprogramming Defendants propose here is 23 24 25 26 27 28 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 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 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 date. See Dkt. No. 159 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 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. 163. 13 9 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 14 of 36 1 2 3 4 for an item for which funds were requested but denied by Congress. i. Plaintiffs are Likely to Show That the Item for Which Funds Are Requested Has Been Denied by Congress. Plaintiffs argue that Defendants are transferring funds for a purpose previously denied by 5 Congress. Mot. at 24. Defendants dispute, however, whether Congress’s affirmative 6 appropriation of funds in the CAA to DHS constitutes a “denial” of appropriations to DoD’s 7 “counter-drug activities in furtherance of DoD’s mission under [Section] 284.” Opp. at 19. In 8 their view, “the item” for which funds are requested, for present purposes, is counterdrug activities 9 under Section 284. Id. at 19–20. And Defendants maintain that “nothing in the DHS appropriations statute indicates that Congress ‘denied’ a request to fund DoD’s statutorily 11 United States District Court Northern District of California 10 authorized counterdrug activities, which expressly include fence construction.” Id. In other 12 words, even though DoD’s counter-drug authority under Section 284 is merely a pass-through 13 vessel for Defendants to funnel money to construct a border barrier that will be turned over to 14 DHS, Citizen Groups RJN Ex. I, at 10, Defendants argue that the Court should only consider 15 whether Congress denied funding to DoD. 16 Plaintiffs have shown a likelihood of success as to their argument that Congress previously 17 denied “the item for which funds are requested,” precluding the proposed transfer. On January 6, 18 2019, the President asked Congress for “$5.7 billion for construction of a steel barrier for the 19 Southwest border,” explaining that the request “would fund construction of a total of 20 approximately 234 miles of new physical barrier.” Citizen Groups RJN Ex. A, at 1. The request 21 noted that “[a]ppropriations bills for fiscal year (FY) 2019 that have already been considered by 22 the current and previous Congresses are inadequate to fully address these critical issues,” to 23 include the need for barrier construction funds. Id. The President’s request did not specify the 24 mechanics of how the $5.7 billion sought would be used for the proposed steel barrier 25 construction. Id. Nonetheless, in the CAA passed by Congress and signed by the President, 26 Congress appropriated only $1.375 billion for the construction of pedestrian fencing, of a specified 27 type, in a specified sector, and appropriated no other funds for barrier construction. The Court 28 agrees with Plaintiffs that they are likely to show that the proposed transfer is for an item for 14 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 15 of 36 1 which Congress denied funding, and that it thus runs afoul of the plain language of Section 8005 2 and 10 U.S.C. § 2214(b) (“Section 2214”).10 As Defendants acknowledge, in interpreting a statute, the Court applies the principle that 3 “the plain language of [the statute] should be enforced according to its terms, in light of its 5 context.” ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015). In its 6 amicus brief, the House recounts legislative history that provides critical context for the Court’s 7 interpretative task. The House explains that the “denied by the Congress” restriction was imposed 8 on DoD’s transfer authority in 1974 to “tighten congressional control of the reprogramming 9 process.” Dkt. No. 73 (“House Br.”) at 9 (citing H.R. Rep. No. 93-662, at 16 (1973)). The House 10 committee report on the appropriations bill from that year explained that “[n]ot frequently, but on 11 United States District Court Northern District of California 4 some occasions, the Department ha[d] requested that funds which have been specifically deleted in 12 the legislative process be restored through the reprogramming process,” and that “[t]he Committee 13 believe[d] that to concur in such actions would place committees in the position of undoing the 14 work of the Congress.” H.R. Rep. No. 93-662, at 16. Significantly, the Committee stated that 15 such a position would be “untenable.” Id. Consistent with this purpose, Congress has described 16 its intent that appropriations restrictions of this sort be “construed strictly” to “prevent the funding 17 for programs which have been considered by Congress and for which funding has been denied.” 18 See H.R. Rep. No. 99-106, at 9 (1985) (discussing analogous appropriations restriction in Pub. L. 19 No. 99-169, § 502(b), 99 Stat. 1005 (codified at 50 U.S.C. § 3094(b)). The Court finds that the language and purpose of Section 8005 and Section 2214(b) likely 20 21 preclude Defendants’ attempt to transfer $1 billion from funds Congress previously appropriated 22 for military personnel costs to the drug interdiction fund for the construction of a border barrier. 23 Defendants argue that “Congress never denied DoD funding to undertake the [Section] 284 24 projects at issue,” Opp. at 20, such that Section 8005 and Section 2214(b) are satisfied. But in the 25 26 27 28 10 See Fox News, Mick Mulvaney on chances of border deal, Democrats ramping up investigation of Trump admin, YouTube (Feb. 10, 2019), (statement by Acting White House Chief of Staff that “[w]e’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 southern barrier. But this is going to get built, with or without Congress.”). 15 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 16 of 36 1 Court’s view, that reading of those sections is likely wrong, when the reality is that Congress was 2 presented with—and declined to grant—a $5.7 billion request for border barrier construction. 3 Border barrier construction, expressly, is the item Defendants now seek to fund via the Section 4 8005 transfer, and Congress denied the requested funds for that item. See 10 U.S.C. § 2214(b) 5 (explaining that transfer authority “may not be used if the item to which the funds would be 6 transferred is an item for which Congress has denied funds”) (emphasis added). And Defendants 7 point to nothing in the language or legislative history of the statutes in support of their assertion 8 that only explicit congressional denial of funding for “[Section] 284 projects,” or even DoD 9 projects generally, would trigger Section 8005’s limitation. Opp. at 20. It thus would be inconsistent with the purpose of these provisions, and would subvert “the difficult judgments 11 United States District Court Northern District of California 10 reached by Congress,” McIntosh, 833 F.3d at 1175, to allow Defendants to circumvent Congress’s 12 clear decision to deny the border barrier funding sought here when it appropriated a dramatically 13 lower amount in the CAA. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 14 (1952) (Frankfurter, J., concurring) (“It is quite impossible . . . when Congress did specifically 15 address itself to a problem . . . to find secreted in the interstices of legislation the very grant of 16 power which Congress consciously withheld. To find authority so explicitly withheld is not 17 merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole 18 legislative process and the constitutional division of authority between President and Congress.”). 19 ii. 20 Plaintiffs are Likely to Show That the Transfer is Not Based on “Unforeseen Military Requirements.” 21 Plaintiffs next argue that any need for border barrier construction—to the extent there is a 22 need—was long “foreseen.” Mot. at 23. The Citizen Group Plaintiffs highlight that the President 23 supported his fiscal year 2019 budget request for border barrier funding with a description that 24 such a barrier “is critical to combating the scourge of drug addiction that leads to thousands of 25 unnecessary deaths.” Motion for Preliminary Injunction at 16, Sierra Club v. Trump, No. 4:19-cv- 26 00892-HSG (N.D. Cal. Apr. 4, 2019) (“Citizen Groups Mot.”) (quoting Citizen Groups RJN Ex. 27 R, at 16). 28 In response, Defendants again seek to minimize the pass-through nature of DoD’s 16 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 17 of 36 1 counterdrug activities authority under Section 284. While not disputing that the President 2 requested—and was denied—more-comprehensive funds for border barrier construction, 3 Defendants instead note that “[t]he President’s 2019 budget request did not propose additional 4 funding for DoD’s counter-drug activities under [Section] 284.” Opp. at 20. Defendants then 5 argue that because DHS only formally requested Section 284 support in February 2019, the need 6 for Section 284 support only become foreseen in February 2019. Id. 7 Separate and apart from the Court’s analysis above regarding whether Congress previously 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 United States District Court Northern District of California 8 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 9 (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 20. 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”); Dkt. No. 89-12, at 14 (testimony of Defendant Shanahan before 28 the House Armed Services Committee explaining that the Administration discussed unilateral 17 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 18 of 36 1 reprogramming “prior to the declaration of a national emergency”). Further, even the purported 2 need for DoD to provide DHS with support for border security has similarly been long asserted. 3 See States RJN Ex. 27 (April 4, 2018 presidential memorandum directing the Secretary of Defense 4 to support DHS “in securing the southern border and taking other necessary actions” due to “[t]he 5 crisis at our southern border”). Defendants’ suggestion that by not specifically seeking border 6 barrier funding under Section 284 by name, the Administration can later contend that as far as 7 DoD is concerned, need for such funding is “unforeseen,” is not likely to withstand scrutiny. Interpreting “unforeseen” to refer to the request for DoD assistance, as opposed to the 8 9 underlying “requirement” at issue, also is not reasonable. By Defendants’ logic, every request for Section 284 support would be for an “unforeseen military requirement,” because only once the 11 United States District Court Northern District of California 10 request was made would the “need to exercise authority” under the statute be foreseen. There is 12 no logical reason to stretch the definition of “unforeseen military requirement” from requirements 13 that the government as a whole plainly cannot predict (like the need to repair hurricane damage) to 14 requirements that plainly were foreseen by the government as a whole (even if DoD did not realize 15 that it would be asked to pay for them until after Congress declined to appropriate funds requested 16 by another agency). Nothing presented by the Defendants suggests that its interpretation is what 17 Congress had in mind when it imposed the “unforeseen” limitation, especially where, as here, 18 multiple agencies are openly coordinating in an effort to build a project that Congress declined to 19 fund. The Court thus finds it likely that Plaintiffs will succeed on this claim.11 20 iii. 21 Accepting Defendants’ Proposed Interpretation of Section 8005’s Requirements Would Likely Raise Serious Constitutional Questions. The Court also finds it likely that Defendants’ reading of these provisions, if accepted, 22 23 would pose serious problems under the Constitution’s separation of powers principles. Statutes 24 must be interpreted to avoid a serious constitutional problem where another “construction of the 25 statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 26 27 28 11 Because the Court has found that Plaintiffs are likely to succeed on their argument that the 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. 18 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 19 of 36 1 689 (2001) (internal quotation marks and citations omitted). Constitutional avoidance is “thus a 2 means of giving effect to congressional intent,” as it is presumed that Congress did not intend to 3 create an alternative interpretation that would raise serious constitutional concerns. Clark v. 4 Martinez, 543 U.S. 371, 382 (2005). Courts thus “have read significant limitations into . . . 5 statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689 (citation 6 omitted). 7 As Plaintiffs point out, the upshot of Defendants’ argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284 9 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate 10 only $1.375 billion for that purpose; (2) Congress’s total fiscal year 2019 appropriation available 11 United States District Court Northern District of California 8 under Section 284 for “[c]onstruction of roads and fences and installation of lighting to block drug 12 smuggling corridors across international boundaries of the United States” was $517 million, much 13 of which already has been spent; and (3) Defendants have acknowledged that the Administration 14 considered reprogramming funds for border barrier construction even before the President signed 15 into law Congress’s $1.375 billion appropriation. See Department of Defense and Labor, Health 16 and Human Services, and Education Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. 17 VI, 132 Stat. 2981, 2997 (2018) (appropriating $881 million in funds “[f]or drug interdiction and 18 counter-drug activities” in fiscal year 2019, $517 million of which is “for counter-narcotics 19 support”); Dkt. No. 151 at 4 (indicating that Defendants have not used—and do not intend to use 20 in the near future—any funds appropriated by Congress for counter-narcotics support for border 21 barrier construction); Dkt. No. 89-12, at 14 (testimony of Defendant Shanahan before the House 22 Armed Services Committee explaining that the Administration discussed unilateral 23 reprogramming “prior to the declaration of a national emergency”). Put differently, according to 24 Defendants, Section 8005 authorizes the Acting Secretary of Defense to essentially triple—or 25 quintuple, when considering the recent additional $1.5 billion reprogramming—the amount 26 Congress allocated to this account for these purposes, notwithstanding Congress’s recent and clear 27 actions in passing the CAA, and the relevant committees’ express disapproval of the proposed 28 reprogramming. See States RJN Ex. 35 (“The committee denies this request. The committee does 19 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 20 of 36 1 not approve the proposed use of [DoD] funds to construct additional physical barriers and roads or 2 install lighting in the vicinity of the United States border.”); id. Ex. 36 (“The Committee has 3 received and reviewed the requested reprogramming action . . . . The Committee denies the 4 request.”). Moreover, Defendants’ decision not to refer specifically to Section 284 in their $5.7 5 billion funding request deprived Congress of even the opportunity to reject or approve this funding 6 item.12 The Court agrees with the Citizen Group Plaintiffs that reading Section 8005 to permit this 7 8 massive redirection of funds under these circumstances likely would amount to an “unbounded 9 authorization for Defendants to rewrite the federal budget,” Citizen Groups Reply at 14, and finds that Defendants’ reading likely would violate the Constitution’s separation of powers principles. 11 United States District Court Northern District of California 10 Defendants contend that because Congress did not reject (and, indeed, never had the opportunity 12 to reject) a specific request for an appropriation to the Section 284 drug interdiction fund, DoD 13 can use Section 8005 to route anywhere up to the $4 billion cap set by that statute, to be spent for 14 the benefit of DHS via Section 284. But this reading of DoD’s authority under the statute would 15 render meaningless Congress’s constitutionally-mandated power to assess proposed spending, 16 then render its binding judgment as to the scope of permissible spending. See FDA v. Brown & 17 Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (holding that the interpretation of statutes 18 “must be guided to a degree by common sense as to the manner in which Congress is likely to 19 delegate a policy decision of such economic and political magnitude”); Util. Air Regulatory Grp. 20 v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if it wishes to assign to 21 an agency decisions of vast economic and political significance.”) (internal quotation marks 22 omitted). This is especially true given that Congress has repeatedly rejected legislation that would 23 have funded substantially broader border barrier construction, as noted above, deciding in the end 24 25 26 27 28 12 Defendants do not convincingly explain why the amount now sought to be transferred under 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 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 appropriate the funds to DHS directly, that highlights rather than mitigates the present problem with Defendants’ position. 20 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 21 of 36 1 to appropriate only $1.375 billion. See City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 2 1234 (9th Cir. 2018) (“In fact, Congress has frequently considered and thus far rejected legislation 3 accomplishing the goals of the Executive Order. The sheer amount of failed legislation on this 4 issue demonstrates the importance and divisiveness of the policies in play, reinforcing the 5 Constitution’s ‘unmistakable expression of a determination that legislation by the national 6 Congress be a step-by-step, deliberate and deliberative process.’”) (citing Chadha, 462 U.S. at 7 959). In short, the Constitution gives Congress the exclusive power “not only to formulate 8 legislative policies and mandate programs and projects, but also to establish their relative priority 9 for the Nation,” McIntosh, 833 F.3d at 1172, and “Congress cannot yield up its own powers” in this regard, Clinton, 524 U.S. at 452 (Kennedy, J., concurring). Defendants’ interpretation of 11 United States District Court Northern District of California 10 Section 8005 is inconsistent with these principles. 12 While Defendants argue that the text and history of Section 284 suggest that their proposed 13 transfer and use of the funds are within the scope of what Congress has permitted previously, Opp. 14 at 21, that argument only highlights the serious constitutional questions that accepting their 15 position would create. First, Defendants note that in the past DoD has completed what they 16 characterize as “large-scale fencing projects” with Congress’s approval. Opp. at 21 (citing H.R. 17 Rep. No. 103-200, at 330–31 (1993)). But Congress’s past approval of relatively small 18 expenditures, that were well within the total amount allocated by Congress to DoD under Section 19 284’s predecessor, speaks not at all to Defendants’ current claim that the Acting Secretary has 20 authority to redirect sums over a hundred orders of magnitude greater to that account in the face of 21 Congress’s appropriations judgment in the CAA. Similarly, whether or not Section 284 formally 22 “limits” the Secretary to “small scale construction” (defined in Section 284(i)(3) as “construction 23 at a cost not to exceed $750,000 for any project”), reading the statute to suggest that Congress 24 requires reporting of tiny projects but nonetheless has delegated authority to DoD to conduct the 25 massive funnel-and-spend project proposed here is implausible, and likely would raise serious 26 questions as to the constitutionality of such an interpretation. See Whitman v. Am. Trucking 27 Ass’ns, 531 U.S. 457, 468 (2001) (noting that Congress “does not, one might say, hide elephants 28 in mouseholes”). 21 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 22 of 36 1 Similarly, if “unforeseen” has the meaning that Defendants claim, Section 8005 would 2 give the agency making a request for assistance under Section 284 complete control over whether 3 that condition is met, simply by virtue of the timing of the request. As here, DHS could wait and 4 see whether Congress granted a requested appropriation, then turn to DoD if Congress declined, 5 and DoD could always characterize the resulting request as raising an “unforeseen” requirement 6 because it did not come earlier. Under this interpretation, DoD could in essence make a de facto 7 appropriation to DHS, evading congressional control entirely. The Court finds that this 8 interpretation likely would pose serious problems under the Appropriations Clause, by ceding 9 essentially boundless appropriations judgment to the executive agencies. 10 Finally, the Court has serious concerns with Defendants’ theory of appropriations law, United States District Court Northern District of California 11 which presumes that the Executive Branch can exercise spending authority unless Congress 12 explicitly restricts such authority by statute. Counsel for Defendants advanced this theory at the 13 hearing on this motion, arguing that when Congress passed the recent DoD appropriations act 14 containing Section 8005, it “could have” expressly “restrict[ed] that authority” to preclude 15 reprogramming funds for border barrier construction. See Dkt. No. 159 at 76:16–77:3. According 16 to Defendants: “If Congress had wanted to deny DOD this specific use of that [reprogramming] 17 authority, that’s something it needed to actually do in an explicit way in the appropriations 18 process. And it didn’t.” Id. at 77:21–24. But it is not Congress’s burden to prohibit the Executive 19 from spending the Nation’s funds: it is the Executive’s burden to show that its desired use of those 20 funds was “affirmatively approved by Congress.” See FLRA, 665 F.3d at 1348 (“[A]ll uses of 21 appropriated funds must be affirmatively approved by Congress,” and “the mere absence of a 22 prohibition is not sufficient.”). To have this any other way would deprive Congress of its absolute 23 control over the power of the purse, “one of the most important authorities allocated to Congress 24 in the Constitution’s ‘necessary partition of power among the several departments.’” Id. at 1346– 25 47 (quoting The Federalist No. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961)). 26 To the extent Defendants believe the Ninth Circuit’s decision in McIntosh suggests 27 anything to the contrary, the Court disagrees. Defendants appeared to argue at the hearing on this 28 motion that McIntosh stands for the principle that the Executive enjoys unfettered spending power 22 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 23 of 36 1 unless Congress crafts an appropriations rider cabining such authority. See Dkt. No. 159 at 75:5– 2 10. As counsel for Defendants put it, “[Plaintiffs] want to say that something was denied by 3 Congress if it wasn’t funded by Congress. . . . But that is just not how these statutes are written 4 and that’s not how [McIntosh] tells us we interpret the appropriations statute.” Id. at 75:13–20. 5 But Defendants overlook that no party in McIntosh disputed that the government’s use of funds 6 was authorized but for the appropriations rider at issue in that case. See 833 F.3d at 1175 (“The 7 parties dispute whether the government’s spending money on their prosecutions violates [the 8 appropriations rider].”). It is thus unremarkable that when faced with a dispute exclusively 9 concerning whether the government’s otherwise-authorized spending of money violated an appropriations rider, the Ninth Circuit held that “[i]t is a fundamental principle of appropriations 11 United States District Court Northern District of California 10 law that we may only consider the text of an appropriations rider.” Id. at 1178; see also Dkt. No. 12 159 at 75:5–10 (defense counsel relying on this language from McIntosh). 13 Unlike in McIntosh, where the sole dispute concerned the scope of an external limitation 14 on an otherwise-authorized spending of money, the present dispute concerns the scope of 15 limitations within Section 8005 itself on the authorization of reprogramming funds. Whether 16 Congress gives authority in the first place is not the same issue as whether Congress later restricts 17 that authority. And it cannot be the case that Congress must draft an appropriations rider to 18 breathe life into the internal limitations in Section 8005 establishing that the Executive may only 19 reprogram money based on unforeseen military requirements, and may not do so where the item 20 for which funds are requested has been denied by Congress. To adopt Defendants’ position would 21 read out these limitations entirely, which the Court cannot do. See Life Techs. Corp. v. Promega 22 Corp., 137 S. Ct. 734, 740 (2017) (“Whenever possible, however, we should favor an 23 interpretation that gives meaning to each statutory provision.”). To give meaning to—and thus to 24 construe the scope of—these internal limitations is wholly consistent with McIntosh, which 25 explained that the Executive’s authority to spend is at all times limited “by the text of the 26 appropriation.” 833 F.3d at 1178 (internal quotation marks omitted). 27 28 For all of these reasons, the Court finds that Plaintiffs have shown a likelihood of success as to their argument that the reprogramming of $1 billion under Section 8005 to the Section 284 23 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 24 of 36 1 account for border barrier construction is unlawful.13 2 b. Section 9705 3 At the President’s direction, Defendants intend to divert $601 million from the Treasury 4 Forfeiture Fund to DHS, to provide additional funding for border barrier construction. See The 5 Funds Available to Address the National Emergency at Our Border, The White House, 6 7 border (Feb. 26, 2019). To do so, Defendants rely on 31 U.S.C. § 9705(g)(4)(B), which authorizes 8 the Secretary of Treasury to transfer “unobligated balances . . . for obligation or expenditure in 9 connection with the law enforcement activities of any Federal agency or of a Department of the Treasury law enforcement organization.” Defendants intend to use the $601 million “in two 11 United States District Court Northern District of California 10 allocations, $242 million available immediately and $359 million from future anticipated 12 forfeitures.” Id. Plaintiffs argue that Defendants’ diversion of $601 million toward border barrier 13 construction is not an expenditure for “law enforcement activities.” Mot. at 25–26.14 14 As a threshold matter, Defendants contend that how the Treasury allocates funds is 15 unreviewable because it is committed to the Treasury’s discretion by law, as “the agency must be 16 allowed to administer its statutory responsibilities” in ways “it sees as the most effective or 17 desirable.” Opp. at 14 (quoting Lincoln v. Vigil, 508 U.S. 182, 192 (1993)). They reason that as 18 long as the Treasury “meet[s] permissible statutory objectives,” the APA precludes judicial review 19 of the allocation. Id. at 15 (quoting Serrato v. Clark, 486 F.3d 560, 568 (9th Cir. 2007)). And in 20 21 22 23 24 25 26 27 28 13 Defendants have now acknowledged that all of the money they plan to spend on border barrier construction under Section 284 is money transferred into that account under Section 8005. See Dkt. No. 151 at 4. Given this acknowledgment, and the Court’s finding that Plaintiffs are likely to 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 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 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. 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 11 (requesting preliminary injunction “prohibiting defendants from transferring and spending funds in excess of what Congress appropriated for counter-narcotics support under 10 U.S.C. § 284”). 14 Notably, the House does not challenge this expenditure in either its own lawsuit or in its amicus brief in this case. See Complaint, U.S. House of Representatives v. Mnuchin, No. 1:19-cv-00969 (TNM) (D.D.C. Apr. 5, 2019), ECF No. 1; House Br. 24 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 25 of 36 1 this instance—according to Defendants—the Acting Secretary of Defense has exercised his “wide 2 discretion to use” unobligated balances “in connection with the law enforcement activities of any 3 Federal agency.” Id. “Thus, funding the construction of border barriers is consistent with the 4 statutory purposes of the TFF, such that the allocation of funds for this purpose is unreviewable.” 5 Id. 6 The Court finds Defendants’ reliance on Lincoln and Serrato unavailing, and finds that the 7 transfer of funds under Section 9705 is reviewable. Under the APA, Congress may preclude 8 review by statute where the administrative action is committed by law to an agency. See 5 U.S.C. 9 § 701(a)(2). Judicial review of agency action, however, is presumptively available. See Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967), abrogated on other grounds by Califano v. Sanders, 11 United States District Court Northern District of California 10 430 U.S. 99 (1977). And this presumption applies to judicial review of an agency’s discretionary 12 acts as well. See 5 U.S.C. § 706(2)(A) (permitting courts to “hold unlawful and set aside agency 13 action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or 14 otherwise not in accordance with law”). That an agency enjoys discretion is thus only the 15 beginning of the inquiry. Whether Section 701(a)(2) precludes review depends on whether the 16 agency enjoys some special discretion. 17 Defendants maintain that such special discretion exists under Lincoln and Serrato. In 18 Lincoln, the Supreme Court held that the Indian Health Service’s decision to discontinue a pilot 19 program called the Indian Children’s Program and reallocate funds from a lump-sum appropriation 20 was committed to agency discretion by law under Section 701(a)(2). 508 U.S. at 193. But the 21 lump-sum nature of the appropriation at issue was critical to the Lincoln Court’s conclusion. 22 “After all, the very point of a lump-sum appropriation is to give an agency the capacity to adapt to 23 changing circumstances and meet its statutory responsibilities in what it sees as the most effective 24 or desirable way.” Id. at 192. As the Supreme Court put it: 25 26 27 28 [A]n agency’s allocation of funds from a lump-sum appropriation requires a complicated balancing of a number of factors which are peculiarly within its expertise: whether its resources are best spent on one program or another; whether it is likely to succeed in fulfilling its statutory mandate; whether a particular program best fits the agency’s overall policies; and, indeed, whether the agency has enough resources to fund a program at all. 25 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 26 of 36 1 Id. at 193 (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)) (internal quotation marks 2 omitted). The Ninth Circuit applied Lincoln to another lump-sum appropriation in Serrato. See 3 486 F.3d at 567–69. And the Ninth Circuit there summarized the test established by Lincoln: 4 “[A]s long as the agency allocates funds from a lump-sum appropriation to meet permissible 5 statutory objectives, [Section] 701(a)(2) gives the courts no leave to intrude. [T]o [that] extent, the 6 decision to allocate funds is committed to agency discretion by law.” Id. at 568 (internal quotation 7 marks omitted). Defendants’ diversion of $601 million from the TFF to fund border barrier construction 8 9 fails the Lincoln unreviewability test in two respects. First, Congress’s funding of the TFF arguably does not qualify as the sort of lump-sum appropriation present in Lincoln and Serrato. 11 United States District Court Northern District of California 10 Rather, Section 9705 delineates a comprehensive list of payments for which the TFF “shall be 12 available,” thus specifying how TFF funds may be used. More important, Defendants’ purported 13 authority for diverting funds from the TFF itself establishes the limitation on discretion which 14 Plaintiffs seek to vindicate here. Section 9705(g)(4)(B) limits transfers for use “in connection 15 with [] law enforcement activities.” And Plaintiffs maintain that Defendants have not met this 16 limitation. See Mot. at 25–26. Thus, even accepting Defendants’ argument that the APA 17 precludes judicial review so long as the Treasury “meet[s] permissible statutory objectives,” see 18 Opp. at 14, judicial review is available because Plaintiffs maintain that the Treasury is transferring 19 funds in a statutorily impermissible manner. See Hawaii v. Trump, 878 F.3d 662, 681 (9th Cir. 20 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (explaining that the “committed to ‘agency 21 discretion by law’” exception is “very narrow,” and “does not apply where, as here, a court is 22 tasked with reviewing whether an executive action has exceeded statutory authority”).15 23 Although it finds that whether Defendants’ conduct meets Section 9705’s requirements is 24 reviewable, the Court need not now address whether Plaintiffs are likely to succeed on the merits 25 of their claim that the use of funds for border barrier construction is not “in connection with a law 26 enforcement activity.” For reasons discussed below, the Court finds that Plaintiffs have not met 27 28 Defendants’ position on the reviewability of Plaintiffs’ challenge to the diversion of TFF funds is, in this sense, symptomatic of Defendants’ general misunderstanding of ultra vires claims. 26 15 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 27 of 36 1 their independently necessary burden of showing a likelihood of irreparable harm as to the 2 diversion of TFF funds so as to be entitled to a preliminary injunction. 3 4 c. NEPA After Plaintiffs filed the instant motion—and one day before Defendants filed their 5 opposition—the Acting Secretary of Homeland Security invoked his authority under Section 6 102(c) of IIRIRA to waive any NEPA requirements for construction in the El Paso and Yuma 7 sectors. See Opp. at 24–26; see also Determination Pursuant to Section 102 of the Illegal 8 Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 9 17185-01 (Apr. 24, 2019); REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat. 231, 306 (May 11, 2005) (amending Section 102(c) to reflect that the Secretary “ha[s] the authority to 11 United States District Court Northern District of California 10 waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure 12 expeditious construction” of barriers and roads). The Acting Secretary later waived NEPA 13 requirements for the El Centro Sector and Tucson Sector Projects as well, on the same basis. See 14 Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant 15 Responsibility Act of 1996, as Amended, 84 Fed. Reg. 21,798 (May 15, 2019); Determination 16 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 17 1996, as Amended, 84 Fed. Reg. 21,800 (May 15, 2019). 18 Defendants contend that such waivers preclude Plaintiffs from advancing a NEPA claim. 19 Opp. at 25 (citing In re Border Infrastructure Envtl. Litig., 915 F.3d 1213, 1221 (9th Cir. 2019)). 20 Plaintiffs respond that DHS’s authority to waive NEPA requirements for construction under 21 IIRIRA does not extend to construction undertaken by DoD under its own spending authority. 22 Reply at 16–17. The Citizen Group Plaintiffs further contend that “Defendants’ argument is 23 incompatible with their own claim that they are not constructing the El Paso and Yuma sections of 24 border wall under IIRIRA authority, but instead under the wholly separate DoD authority,” and 25 suggest that “Defendants cannot have it both ways.” Citizen Groups Reply at 18–19. 26 Neither set of Plaintiffs appears to contest that the waivers, if applicable, would be 27 dispositive of the NEPA claims. See Reply at 16 (“Plaintiffs do not dispute DHS’s ability to 28 waive NEPA compliance when constructing barriers pursuant to [IIRIRA], with funds specifically 27 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 28 of 36 1 appropriated by Congress to be used for that construction.”) (emphasis in original); see also In re 2 Border Infrastructure Envtl. Litig., 915 F.3d at 1221 (“[A] valid waiver of the relevant 3 environmental laws under section 102(c) is an affirmative defense to all the environmental claims 4 [including NEPA claims],” and is “dispositive of [those] claims.”). But Plaintiffs contend that 5 “the DHS Secretary’s waiver under IIRIRA does not waive DOD’s obligations to comply with 6 NEPA prior to proceeding with El Paso Project 1 under DOD’s statutory authority, 10 U.S.C. 7 § 284, and using DOD’s appropriations,” so that “DHS’s waiver has no application to this 8 project.” Reply at 16 (emphasis in original); see also Citizen Groups Reply at 19 (“Defendants 9 identify no statutory authority for a waiver for ‘expeditious construction’ under DOD’s § 284 10 United States District Court Northern District of California 11 authority, and none exists.”). The Court finds that Plaintiffs are not likely to succeed on their NEPA argument because 12 of the waivers issued by DHS. DoD’s authority under Section 284 is derivative. Under the 13 statute, DoD is limited to providing support (including construction support) to other agencies, and 14 may invoke its authority only in response to a request from such an agency. See 10 U.S.C. § 284 15 (“The Secretary of Defense may provide support for the counterdrug activities . . . of any other 16 department or agency of the Federal Government,” including support for “[c]onstruction of roads 17 and fences,” if “such support is requested . . . by the official who has responsibility for the 18 counterdrug activities.”). Here, DHS has made such a request, invoking “its authority under 19 Section 102 of IIRIRA to install additional physical barriers and roads” in designated areas, 20 seeking support for its “ability to impede and deny illegal entry and drug smuggling activities.” 21 States RJN Ex. 33, at 1. DHS requested DoD’s assistance “[t]o support DHS’s action under 22 Section 102.” Id. at 2. Plaintiffs’ argument would require the Court to find that even though it is 23 undisputed that DHS could waive NEPA’s requirements if it were paying for the projects out of its 24 own budget, that waiver is inoperative when DoD provides support in response to a request from 25 DHS. The Court finds it unlikely that Congress intended to impose different NEPA requirements 26 on DoD when it acts in support of DHS’s Section 102 authority in response to a direct request 27 28 28 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 29 of 36 1 under Section 284 than would apply to DHS itself.16 See Defs. of Wildlife v. Chertoff, 527 F. 2 Supp. 2d 119, 121, 129 (D.D.C. 2007) (finding DHS’s Section 102 waiver authority authorized the 3 DHS Secretary to waive legal requirements where the U.S. Army Corps of Engineers, a federal 4 agency within the DoD, was constructing border fencing “on behalf of DHS”).17 5 2. Likelihood of Irreparable Injury Plaintiffs advance two theories of irreparable harm: (1) New Mexico faces irreparable 6 7 environmental harm from border barrier construction; and (2) all States face irreparable harm from 8 the diversion of funds from the TFF. Mot. at 29–33. Defendants take issue with both theories. 9 Opp. at 31–34. 10 a. New Mexico’s asserted environmental harm stems largely from Defendants’ alleged failure 11 United States District Court Northern District of California New Mexico’s Environmental Harm 12 to comply with NEPA. See Mot. at 29 (“Thus, irreparable injury exists when the agency fails to 13 consider the environmental concerns raised by NEPA such that governmental decisionmakers 14 make up their minds without having before them an analysis (with prior public comment) of the 15 likely effects of their decision upon the environment.”) (internal quotation marks omitted). But 16 for the reasons discussed above, the Court finds Plaintiffs are unlikely to succeed on the merits of 17 their NEPA claim. Plaintiffs also allege, however, that beyond the procedural NEPA harm, 18 Defendants’ overall unlawful reprogramming and use of funds under Sections 8005 and 284 for 19 border barrier construction “will cause irreparable injury to wildlife in the area and New Mexico 20 as a whole.” Id. at 30. And among other things, Defendants’ proposed border barrier construction 21 in the El Paso Sector Project 1 portion of New Mexico allegedly will (1) impede wildlife 22 23 24 25 26 27 28 Plaintiffs argue that “[i]n another context, Congress explicitly allows the DOD Secretary 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 necessary.’” 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 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 notwithstanding DHS’s waiver. 17 To the extent Plaintiffs’ argument is that Defendants “cannot have it both ways,” the Court agrees, to the extent it found a likelihood of success as to Plaintiffs’ Section 8005 argument, as discussed in Section II.C.1.a, above. 29 16 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 30 of 36 1 connectivity of over 100 species of wildlife, including the Mexican gray wolf, mountain lion, 2 bobcat, mule deer, and javelina; (2) generate “noise, deep holes for fence posts, vehicle traffic, 3 lighting, and other [construction] disturbances,” which will “kill, injure, or alter the behavior of” 4 several species, including the Aplomado falcon and Gila monster; (3) limit New Mexico residents’ 5 recreational opportunities; and (4) harm New Mexico as a whole, as it is entrusted by its residents 6 with a duty to protect natural resources for its residents’ benefit. Id. at 30–31. 7 Defendants posit that Plaintiffs’ “vague allegations,” only supported by “declarations [that] 8 are heavy on conjecture and light on detail” concerning harm to local species, are insufficient to 9 satisfy Plaintiffs’ burden of demonstrating a likelihood of irreparable injury. Opp. at 31–32. More to the point, Defendants maintain that New Mexico fails to meet its burden of showing that 11 United States District Court Northern District of California 10 Defendants’ plan “is likely to cause population-level harm,” which Defendants claim requires 12 proof of a “definitive threat” to the species as a whole, and “not mere speculation.” Id. at 32 13 (quoting Nat’l Wildlife Fed’n v. Burlington N.R.R., 23 F.3d 1508, 1512 n.8 (9th Cir. 1994) 14 (“Burlington”)). And as is relevant to the present discussion, Defendants highlight that any 15 purported environmental harm does not warrant a preliminary injunction because population or 16 species-level harm would not occur before a final disposition of the case on the merits. Id. at 34. 17 Last, Defendants attack New Mexico’s invocation of its residents’ recreational interests as a 18 possible irreparable harm, because states may not advance resident interests in parens patriae 19 against the United States. Id. at 33 (citing Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 20 (9th Cir. 2011)). 21 As the Ninth Circuit has explained, “it would be incorrect to hold that all potential 22 environmental injury warrants an injunction.” League of Wilderness Defs./Blue Mountains 23 Biodiversity Project v. Connaughton, 752 F.3d 755, 764 (9th Cir. 2014). “Environmental injury,” 24 however, “by its nature, can seldom be adequately remedied by money damages and is often 25 permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 26 Alaska, 480 U.S. 531, 545 (1987). Plaintiffs must nonetheless demonstrate that irreparable injury 27 “is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Mere “possibility” of 28 irreparable harm does not merit a preliminary injunction. Id. 30 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 31 of 36 1 Contrary to Defendants’ suggestion, the irreparable-injury inquiry does not require a 2 showing of population-level harm or an extinction-level threat. In fact, none of Defendants’ 3 proffered cases establish this standard. See N.M. Dep’t of Game & Fish v. DOI, 854 F.3d 1236, 4 1251 (10th Cir. 2017) (rejecting as insufficient evidence of irreparable harm a single declaration 5 stating that the release of Mexican Wolves within a state “has the potential to affect predator-prey 6 dynamics, and may affect other attributes of the ecosystem”); Burlington, 23 F.3d at 1511–12 7 (finding a district court did not clearly err in finding plaintiff failed to establish a likelihood of 8 irreparable future injury based on past accidental injuries to protected grizzly bears); Maughan v. 9 Vilsack, No. 4:14-cv-0007-EJL, 2014 WL 201702, at *6–7 (D. Idaho Jan. 17, 2014) (finding that growth in wolf population cut against plaintiffs’ claim that a program authorizing wolf hunting 11 United States District Court Northern District of California 10 would cause irreparable injury).18 For example, Defendants offer Burlington for the principle that 12 New Mexico here must establish that the challenged conduct constitutes a “definitive threat” to a 13 “protected species.” Opp. at 32 (citing 23 F.3d at 1512 n.8). But the Burlington court added an 14 important qualifier: “We are not saying that a threat of extinction to the species is required before 15 an injunction may issue under the ESA. This would be contrary to the spirit of the statute, whose 16 goal of preserving threatened and endangered species can also be achieved through incremental 17 steps.” 23 F.3d at 1512 n.8. And Burlington cited favorably a case where “between three and nine 18 grizzly bears would be killed” as meriting an injunction. Id. (citing Fund for Animals, Inc. v. 19 Turner, No. 91-2201(MB), 1991 WL 206232 (D.D.C. Sept. 27, 1991)). Thus, while a showing of 20 irreparable environmental injury to warrant injunctive relief may require evidence that the 21 challenged action poses a threat of future demonstrable harm to a protected species, it does not 22 require that the species is likely to be entirely wiped out.19 23 24 25 26 27 28 18 Although the court in Maughan found a lack of irreparable injury because evidence showed the wolf species population was growing despite the challenged action, it nonetheless stated: “The evidence in the current record shows that the [challenged] program for hunting wolves will not result in the loss of the species as a whole.” See 2014 WL 201702, at *7. Even if the Maughan court meant for this passing comment to serve as the standard for irreparable injury, no court has since endorsed this view. More important, that standard would be inconsistent with Ninth Circuit law, and thus the Court reads Maughan as standing for the narrow proposition that undisputed evidence of species growth in the face of a challenged action tilts against a finding of irreparable injury to that species from the challenged action. 19 At the hearing on this motion, counsel for Defendants essentially acknowledged that this is the 31 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 32 of 36 1 However, whether or not New Mexico has proffered sufficient evidence to meet its burden 2 of showing a likelihood of irreparable environmental harm from the use of reprogrammed and 3 diverted funds under Sections 8005 and 284 for border barrier construction in the El Paso Sector 4 Project 1 region, the contested use of such funds is no longer likely before resolution of the case 5 on the merits. This is because the Court has enjoined the relevant Defendants in the Citizen 6 Groups’ action from proceeding with such construction. See Order at 55, Sierra Club v. Trump, 7 No. 4:19-cv-00892-HSG (N.D. Cal. May 24, 2019), ECF No. 144 (enjoining the use of 8 reprogrammed funds for border barrier construction in El Paso Sector Project 1). Accordingly, no 9 irreparable harm will result from the denial (without prejudice) of the States’ duplicative requested 10 United States District Court Northern District of California 11 injunction. b. States’ Harm from Diversion of TFF Funds 12 Plaintiffs’ second theory of harm is that the diversion of TFF funds runs the risk of 13 “depriv[ing] Plaintiff States of the same opportunity to receive TFF funds that they have enjoyed 14 for years.” Mot. at 31. Plaintiffs contend that a $601 million diversion “undermines the continued 15 viability of TFF” moving forward and “jeopardizes the States’ ability to collect their pending 16 equitable share claims of millions of dollars that they are entitled to receive after dedicating time 17 and resources to participating in joint law enforcement efforts.” Id. at 32. In other words, 18 Plaintiffs’ alleged irreparable harms are that they (1) will not receive equitable share claims 19 already owed, and (2) may not receive equitable share claims in the future. 20 Defendants respond to both irreparable injury bases with a declaration of the TEOAF 21 Director, John M. Farley, who manages the TFF. See Farley Decl. ¶ 2. Mr. Farley acknowledges 22 that equitable sharing payments to state and local enforcement agencies are “mandatory” TFF 23 expenses. Id. ¶ 8. Mr. Farley explains, however, that “Strategic Support is an amount of 24 unobligated funds at the end of the fiscal year, after accounting for equitable sharing and other 25 mandatory expenses . . . [which] may be used in connection with the law enforcement activities of 26 any Federal agency.” Id. ¶ 4. He adds that TEOAF works with TFF member agencies “to track 27 28 appropriate standard. Dkt. No. 159 at 104:4–6 (“And I don’t want to overstate that because it’s -as my colleagues on the other side have pointed out, it’s not extinction.”) 32 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 33 of 36 1 anticipated and current forfeiture cases and liabilities that may be associated with such cases,” 2 which “enables the program to accurately estimate its revenue and liabilities.” Id. ¶¶ 5, 9.20 In 3 this capacity, the “TFF has remained financially solvent and maintained adequate funds in its 4 accounts to meet all of its expenses” since its inception in 1992. Id. ¶ 9. 5 Because Strategic Support funding at the end of any fiscal year has already taken account 6 of current fiscal year mandatory expenses and anticipated liabilities for the following fiscal year, 7 Mr. Farley provides that “the decision to make Strategic Support funding available in fiscal year 8 2019 will have no impact on the amount of money state and local entities receive through 9 equitable sharing.” Id. ¶¶ 13, 23. And the Treasury predicts that following the diversion of $601 million in strategic support payments to DHS, the “projected unobligated balance carry-over to 11 United States District Court Northern District of California 10 fiscal year 2020 will be approximately $507 million.” Id. ¶ 26. Given Mr. Farley’s representations, Defendants argue that there is no risk of irreparable 12 13 harm to Plaintiffs from the diversion of TFF funds: “Because Treasury’s Strategic Support 14 payments to DHS do not pose any threat to the solvency of the TFF or diminish the equitable 15 sharing payments to which the States may be entitled under [Section] 9705, the States have not 16 established a likelihood of irreparable injury.” Opp. at 31. Plaintiffs’ substantive response to the 17 Farley declaration is to characterize it as a “self-serving declaration” that must be disregarded. 18 But Plaintiffs’ support for this proposition—Nigro v. Sears, Roebuck & Co.—stands for the exact 19 opposite proposition. See 784 F.3d 495, 497 (9th Cir. 2015) (“Although the source of the 20 evidence may have some bearing on its credibility and on the weight it may be given by a trier of 21 fact, the district court may not disregard a piece of evidence at the summary judgment stage solely 22 based on its self-serving nature.”). At the hearing on this motion, Plaintiffs shifted their criticism of Mr. Farley to his TFF 23 24 balance calculation. See Dkt. No. 138 at 45:12–47:1. Plaintiffs argued that Mr. Farley failed to 25 consider contingent liabilities and noted that the TFF could theoretically be underwater based on 26 such liabilities and other data contained in TEOAF’s fiscal year 2020 budget. See id.; see also 27 28 20 TEOAF also sets aside funding to cover future fiscal year expenses. See Farley Decl. ¶¶ 10–11 (explaining the process). 33 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 34 of 36 1 Dkt. No. 136 Ex. 55, at 6–7. It does not appear warranted, though, to discount the TFF balance 2 calculation by the entire contingent liability entry, given that such liabilities “are significant 3 because remission payments from multiple years are recorded and carried forward.” See Dkt. No. 4 136 Ex. 55, at 6. Nothing indicates that the Treasury would pay out all contingent liabilities in the 5 next fiscal year. And even accepting Plaintiffs’ argument as true, they have not explained why the 6 TFF’s existence alone manifests an entitlement to future equitable sharing payments. Further, 7 Plaintiffs fail to consider that the amount of potential future equitable sharing payments is tethered 8 to future seizures or forfeitures for which a given state or local law enforcement agency 9 participates in the seizure or forfeiture, and is capped by the value of the seized or forfeited property. See 31 U.S.C. § 9705(a)(1)(g), (b)(2), (h)(1)(B)(ii). Thus, to the extent a given law 11 United States District Court Northern District of California 10 enforcement agency participates in future seizures or forfeitures, the TFF necessarily will have the 12 funds to provide the mandatory equitable sharing payment. Most important, Plaintiffs’ ignore that the burden is theirs to demonstrate that irreparable 13 14 injury is likely in the absence of an injunction. Winter, 555 U.S. at 22. “Speculative” or 15 “possible” injury is not enough. All. for the Wild Rockies, 632 F.3d at 1131–36. Plaintiffs have 16 not met their burden. Plaintiffs alleged there was some risk that Defendants’ diversion of $601 17 million would undermine the continued viability of TFF and/or jeopardize their ability to collect 18 “pending” equitable share claims. See Mot. at 31–32. Defendants responded with a sworn 19 declaration demonstrating that no pending equitable share claims are at risk and that the TEOAF 20 has taken account of future needs to prevent any threat to TFF’s continued viability. The Court 21 cannot ignore this declaration just because it makes it more difficult for Plaintiffs to meet their 22 burden to demonstrate that irreparable injury is likely in the absence of an injunction. And the 23 Court also cannot ignore that Plaintiffs failed to consider important relevant factors, such as the 24 nature of equitable sharing payments. Thus, even though Plaintiffs have shown that they have 25 standing as to this claim, they have not shown an entitlement to the “extraordinary” remedy of a 26 preliminary injunction on this basis.21 27 28 21 To the extent Plaintiffs rely on American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058–59 (9th Cir. 2009), for the principle that a “constitutional violation alone, 34 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 35 of 36 3. 1 Balance of Equities and Public Interest When the government is a party to a case in which a preliminary injunction is sought, the 2 3 balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 4 F.3d 1073, 1092 (9th Cir. 2014). According to Defendants, these factors tilt in their favor, 5 because their “weighty” interest in border security and immigration-law enforcement, as 6 sanctioned by Congress, outweighs Plaintiffs’ “speculative” injuries. Opp. at 34–35. The Ninth 7 Circuit has recognized that “the public has a ‘weighty’ interest ‘in efficient administration of the 8 immigration laws at the border,’” and the Court does not minimize this interest. See E. Bay 9 Sanctuary Covenant v. Trump, 909 F.3d 1219, 1255 (9th Cir. 2018) (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)). On the other hand, “the public also has an interest in ensuring that 11 United States District Court Northern District of California 10 statutes enacted by their representatives are not imperiled by executive fiat.” Id. (internal 12 quotation marks and brackets omitted). Because Plaintiffs have not shown a likelihood of 13 irreparable harm as to the TFF diversion, and because the Court need not now reach that question 14 with respect to the El Paso Sector project, this factor does not militate in favor of a preliminary 15 injunction.22 16 // 17 // 18 // 19 // 20 // 21 // 22 23 24 25 26 27 28 coupled with the damages incurred, can suffice to show irreparable harm,” that principle does not alter the Court’s conclusion. See Mot. at 31. Even under that theory of irreparable harm, Plaintiffs must demonstrate some likely harm resulting from the challenged action, and not simply a constitutional violation. 22 The Court observes that, although Congress appropriated $1.571 billion for physical barriers 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 CBP represents it has only constructed 1.7 miles of fencing with that funding. See Dkt. No. 161; see also Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) 132 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. 35 Case 4:19-cv-00872-HSG Document 165 Filed 05/24/19 Page 36 of 36 1 2 III. CONCLUSION For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ 3 motion for a preliminary injunction. A case management conference is set for June 5, 2019 at 4 2:00 p.m. At the case management conference, the parties should be prepared to discuss a plan for 5 expeditiously resolving this matter on the merits, whether through a bench trial, cross-motions for 6 summary judgment, or other means. The parties must submit a joint case management statement 7 by May 31, 2019. 8 9 IT IS SO ORDERED. Dated: 5/24/2019 10 United States District Court Northern District of California 11 HAYWOOD S. GILLIAM, JR. United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36

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