State of California et al v. Trump et al

Filing 215

NOTICE Regarding Funding of Border Barrier Projects Pursuant to 10 U.S.C. § 284 in Fiscal Year 2020 by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson (Attachments: # 1 Declaration)(Warden, Andrew) (Filed on 9/30/2019) Modified on 10/1/2019 (jjbS, COURT STAFF).

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

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

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STATE OF CALIFORNIA, et al.,

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

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No. 4:19-cv-00872-HSG
No. 4:19-cv-00892-HSG
NOTICE REGARDING FUNDING
OF BORDER BARRIER
PROJECTS PURSUANT TO 10
U.S.C. § 284 IN FISCAL YEAR 2020

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SIERRA CLUB, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects in FY 2020
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects in FY 2020

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Defendants hereby notify the Court and parties in the above-captioned cases that the

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Department of Defense (DoD) has approved making additional appropriated funds available for

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use on the existing border barrier projects undertaken pursuant to 10 U.S.C. § 284.

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As explained in Defendants’ prior submissions in these cases, in fiscal year 2019 DoD

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authorized $2.5 billion in border barrier construction support to the Department of Homeland

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Security under 10 U.S.C. § 284(b)(7). See, e.g., Third Declaration of Kenneth P. Rapuano ¶ 3

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(May 15, 2019) (ECF No. 151-2 in 19-cv-872; ECF No. 131-2 in 19-cv-892). The funding for

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these projects was provided using DoD’s general transfer authority under § 8005 of the DoD

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Appropriations Act, 2019 (Pub. L. 115-235), and § 1001 of the John S. McCain National Defense

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Authorization Act for Fiscal Year 2019 (NDAA) (Pub. L. 115-232), as well as DoD’s special

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transfer authority under § 9002 of the DoD Appropriations Act and § 1512 of the NDAA. See

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Declaration of Kenneth P. Rapuano ¶ 5 (April 25, 2019) (ECF No. 89-10 in 19-cv-872; ECF No.

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64-8 in 19-cv-892); Second Declaration of Kenneth P. Rapuano ¶ 7 (May 13, 2019) (ECF No. 143-

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1 in 19-cv-872; ECF No. 118-1 in 19-cv-892); Third Rapuano Decl. ¶ 4. None of these funds were

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drawn from direct appropriations to the counter-narcotics support line of the Drug Interdiction and

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Counter-Drug Activities, Defense, account (counter-narcotics account). See Defs.’ Response to

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the Court’s May 13, 2019 Order at 4 (ECF No. 151 in 19-cv-00872; ECF No. 131 in 19-cv-892);

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see also Sierra Club v. Trump, 379 F. Supp. 3d 883, 918 n.17 (N.D. Cal. 2019).

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In fiscal year 2020, which begins on October 1, 2019, the U.S. Army Corps of Engineers

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(USACE) requires up to $90 million in fiscal year 2020 funds from the counter-narcotics account

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to cover its operating costs, such as labor and travel costs, for the oversight and management of

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the § 284 construction contracts during fiscal year 2020. See Sixth Declaration of Kenneth P.

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Rapuano ¶¶ 3-4 (Sept. 30, 2019) (attached as Exhibit 1).1 In fiscal year 2019, these operating costs

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were funded by the $2.5 billion transferred to the counter-narcotics account. Id. ¶ 5. In fiscal

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year 2020, these costs will be covered by funds appropriated to the counter-narcotics account. Id.

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On September 27, 2019, the President signed into law H.R. 4378, the “Continuing
Appropriations Act, 2020, and Health Extenders Act of 2019,” which provides fiscal year 2020
appropriations to federal agencies through November 21, 2019.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects in FY 2020
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects in FY 2020
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The funds will be disbursed to USACE in increments, subject to the availability of funds, as needed

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over the course of the fiscal year. Id. ¶ 4. The first increment of up to $12 million will be available

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for USACE’s use beginning on October 7, 2019. Id.

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Additionally, DoD is making available $129.085 million of expiring fiscal year 2019 funds

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from the counter-narcotics account to address any unanticipated, within-scope contract costs

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associated with fiscal year 2019 counter-narcotics projects, including the § 284 construction

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contracts. Id. ¶¶ 4, 7. The Military Departments returned $129.085 million to the counter-

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narcotics account at the end of fiscal year 2019 because they determined those funds to be excess

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to need in fiscal year 2019. Id. ¶ 7. None of the excess fiscal year 2019 funds made available for

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contingency costs will be obligated unless (1) a contractor first makes a request for equitable

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adjustment, or the government identifies the need for an adjustment and makes a request for

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proposal to address that need, due to an unanticipated additional expense in performing the

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contract; (2) the contracting officer determines that the expense constitutes an antecedent liability

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under the terms of the contract (e.g., changed site condition); and (3) the relevant official approves

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an upward obligation adjustment for the contract. Id. ¶ 8. USACE does not anticipate using any

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of these funds for upward obligation adjustments on the existing § 284 contracts before October

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7, 2019. Id.

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For both the operating costs and contingency costs, the additional amounts of appropriated

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funds made available will not be used for any additional border barrier projects or to expand the

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scope of any existing projects. Id. ¶ 3. Further, funds for the Drug Demand Reduction program,

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the National Guard Counter-drug program, or the National Guard Counter-drug Schools program

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were not made available for these costs. Id. ¶¶ 6, 9.

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects in FY 2020
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects in FY 2020
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DATE: September 30, 2019

Respectfully submitted,
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects in FY 2020
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects in FY 2020
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