State of California et al v. Trump et al

Filing 216

NOTICE Regarding Use Of The Treasury Forfeiture Fund 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, # 2 Declaration)(Warden, Andrew) (Filed on 10/3/2019) Modified on 10/4/2019 (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 USE OF
THE TREASURY FORFEITURE
FUND

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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 Treasury Forfeiture Fund
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasure Forfeiture Fund

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Defendants hereby update the Court and parties in the above-captioned cases about the

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use of the Treasury Forfeiture Fund (TFF) to support the U.S. Customs and Border Protection’s

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(CBP) border security law enforcement mission.

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As explained in Defendants’ prior submissions, on February 15, 2019, the U.S.

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Department of the Treasury determined that the TFF could allocate up to $601 million to CBP

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for its border security law enforcement mission. See First Declaration of John M. Farley ¶ 24

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(April 12, 2019). This sum of money was separated into two tranches. Id. ¶ 25. The first

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tranche of $242 million was made available to CBP for obligation on March 14, 2019 through an

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interagency agreement. See Second Declaration of John M. Farley ¶ 4 (October 2, 2019)

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(attached as Exhibit 1). The second tranche of $359 million was made available to CBP for

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obligation on July 16, 2019 through a modification to the interagency agreement. Id.

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Defendants’ prior submissions also explained that, in practice, once the statutory

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requirements are met and Congressional notifications are made, Treasury and the agencies enter

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into interagency agreements, after which the agencies receiving TFF funds may begin incurring

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expenses and submitting invoices to the TFF for reimbursement, which the TFF would then

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reimburse. See First Farley Decl. ¶¶ 14, 25; Second Farley Decl. ¶ 5. As relevant here, CBP has

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submitted one claim to TFF for reimbursement of border security expenses. See Declaration of

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Ruynard Singleton ¶ 4 (Oct. 4, 2019) (attached as Exhibit 2). On September 4, 2019, CBP

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submitted a request for reimbursement of $6631.74 for CBP program management and support

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costs associated with planning potential TFF funded projects. Id.; see also Third Declaration of

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Loren Flossman ¶ 4 (July 11, 2019) (ECF No. 196 in 19-cv-872; ECF No. 195 in 19-cv-892)

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(stating CBP intended to use some TFF money for program support). CBP received

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reimbursement for these funds on September 12, 2019. Id.

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Recently, the manner in which TFF strategic support funds are made available to CBP for

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its border security expenses has changed. See Second Farley Decl. ¶ 5. Instead of having CBP

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submit invoices to Treasury for reimbursement of its expenditures, a financial transfer of

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approximately $601 million was made directly to CBP. Id. Specifically, on September 27, 2019,

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pursuant to a financial transfer, a CBP account received from the Department of the Treasury
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re Treasury Forfeiture Fund
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasure Forfeiture Fund

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$600,993,368.26 to support CBP’s law enforcement border security mission. See Singleton

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Decl. ¶ 4. This money now resides in a CBP account rather than a Treasury account, thereby

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allowing CBP to spend funds directly without submitting reimbursement requests to Treasury.

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See Second Farley Decl. ¶ 5.

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CBP plans to utilize TFF money for planning and construction exclusively within Texas,

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in the Rio Grande Valley and/or Laredo Sectors. See Singleton Decl. ¶ 5. At this time no final

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decisions have been made as to the final barrier location for any project potentially funded by the

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TFF in the Rio Grande Valley and/or Laredo Sectors, and no TFF funds have been obligated to

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specific border barrier projects in these Sectors. Id.

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DATE: October 3, 2019

Respectfully submitted,

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JAMES M. BURNHAM
Deputy Assistant Attorney General

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ALEXANDER K. HAAS
Director, Federal Programs Branch

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ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch

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/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]

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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 Treasury Forfeiture Fund
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasure Forfeiture Fund

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