379 F. Supp. 3d 928
N.D. Cal.2019Background
- A coalition of states (later 20) sued the President and multiple federal agencies seeking to enjoin use of redirected federal funds to build a U.S.–Mexico border barrier; Sierra Club/Citizen Groups filed a related suit.
- Defendants plan to fund construction by (a) reprogramming DoD funds under 10 U.S.C. §8005 into a DoD drug-interdiction (§284) account, and (b) transferring $601M from the Treasury Forfeiture Fund under 31 U.S.C. §9705. DHS also issued waivers under IIRIRA §102 to exempt certain projects from NEPA.
- Plaintiffs sought a preliminary injunction to stop use of reprogrammed funds (including a challenged $1B transfer under §8005) and the TFF diversion, and to enjoin construction absent NEPA compliance.
- The Court found Article III standing for New Mexico (§8005), for states on the §9705 claim, and for California (making venue proper in N.D. Cal.).
- On the merits at the preliminary-injunction stage, the Court concluded Plaintiffs likely will succeed in showing the §8005 reprogramming is unlawful (Congress denied the requested border-wall appropriation and the need was not "unforeseen"). The §9705 TFF diversion is reviewable but the Court did not find Plaintiffs likely to show they will suffer irreparable harm from that diversion.
- The Court denied the motion for a preliminary injunction without prejudice (but noted DHS waivers likely preclude the NEPA claim where DoD acts in support of DHS under §284); parties directed to proceed to merits promptly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge §8005 reprogramming | New Mexico: reprogramming into drug-interdiction fund is fairly traceable to planned barrier construction and causes environmental harm | Reprogramming and later use are distinct; plaintiff must be object of the specific agency action | Court: New Mexico has standing; causal chain plausible despite intermediate actions |
| Validity of §8005 reprogramming (ultra vires / appropriations) | §8005 transfer unlawful because Congress denied the President's larger border appropriation and the need was not "unforeseen" | §8005 grants reprogramming authority; Congress could have and did not expressly preclude this use | Court: Plaintiffs likely to succeed: §8005 limits (denied item; unforeseen requirement) likely preclude the transfer; accepting Defendants' reading raises serious Appropriations Clause/separation-of-powers concerns |
| Use of Treasury Forfeiture Fund under §9705 | Diversion of $601M undermines TFF solvency and future equitable-sharing payments; states will suffer economic harm | Treasury allocation is committed discretion; Strategic Support funds are available and TEOAF declaration shows solvency and no imminent harm | Court: §9705 transfers are reviewable; Plaintiffs have standing but failed to show likely irreparable harm, given TEOAF's sworn projections |
| NEPA claim for DoD-funded construction under §284 | DoD must comply with NEPA when using its authority; DHS waivers do not cover DoD acting under §284 | DHS validly waived NEPA under IIRIRA §102; DoD is providing derivative support to DHS so waiver applies | Court: Plaintiffs unlikely to prevail on NEPA claim because DoD's §284 work is derivative of DHS request and DHS waived NEPA for the relevant projects |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success, irreparable harm, balance of equities, public interest)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (sliding-scale/serious-questions standard for injunctions)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing: injury-in-fact, causation, redressability)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (special solicitude for state-standing analysis)
- Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) (federal courts may enjoin unconstitutional or ultra vires federal officers; equitable relief principles)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (separation-of-powers limits on executive action)
- U.S. Dep't of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) (Appropriations Clause and requirement that uses of appropriated funds be affirmatively approved by Congress)
- United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) (interpretation of appropriations riders and limits on spending authority)