453 F.Supp.3d 11
D.D.C.2020Background
- In 2019 Congress appropriated $1.375 billion for border barrier construction in the Rio Grande Valley Sector, short of the President’s $5.7 billion request; the President declared a national emergency to unlock additional funding sources.
- The Administration pursued alternative funding: DoD invoked 10 U.S.C. § 2808 ($3.6B military construction), DoD transferred $2.5B via § 8005 into a counterdrug (§ 284) account, and Treasury allocated $601M from the Treasury Forfeiture Fund (§ 9705).
- Two consolidated suits (Center for Biological Diversity (CBD) and Rio Grande International Study Center (RGISC)) challenged those funding actions as ultra vires, APA and CAA violations, NEPA violations, and constitutional/Appropriations Clause infringements.
- The Court resolved multiple threshold issues: most plaintiffs plausibly alleged standing, but LCLAA and GreenLatinos were dismissed; the President was dismissed as a defendant; NEPA claims were dismissed because DHS validly waived NEPA under IIRIRA.
- The Court held NEA (emergency declaration) challenges non-justiciable political questions and dismissed those counts; it also limited APA review and zone-of-interests standing, allowing only certain CAA (§ 739) claims to proceed while dismissing APA claims under §§ 2808, 284, 8005, and 9705 on zone‑of‑interests or committed‑to‑discretion grounds.
- The Court allowed plaintiffs to proceed with ultra vires equitable claims (despite the Government’s arguments to the contrary) for several statutory theories (notably CAA § 739 and certain § 2808/§ 8005 or § 284 claims), but dismissed RGISC’s standalone § 9705 claim and all constitutional claims recast from statutory allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs alleged concrete injuries from barrier construction (property, cultural, recreational harms) | Defendants argued lack of traceability/redressability given shifting funding plans | Most plaintiffs plausibly alleged standing at the motion‑to‑dismiss stage; LCLAA and GreenLatinos lacked standing and were dismissed |
| Justiciability of NEA declaration | Proclamation was ultra vires or a political pretext | Political question doctrine bars review of emergency declaration and motives | NEA challenges are non‑justiciable political questions; NEA counts dismissed and President removed as defendant |
| NEPA claims | DHS/DoD failed to comply with NEPA for barrier projects | DHS validly waived NEPA under IIRIRA § 102(c) | NEPA claims dismissed because Secretary validly exercised IIRIRA waiver authority |
| APA reviewability of § 2808 actions | Plaintiffs: § 2808 actions reviewable under APA/statutory standards | Defendants: § 2808 decisions ("necessary" to support armed forces) are committed to agency/military discretion | Court declined APA review of § 2808 "necessary" determination as non‑judicially‑manageable, but allowed ultra vires challenges to proceed |
| Zone of interests for transferred‑fund statutes (§§ 2808, 284, 8005, 9705, CAA) | Plaintiffs: their environmental/property interests fall within statutes’ concerns (esp. CAA) | Defendants: plaintiffs’ interests are not within the zones of interests of those statutes (except possibly CAA) | Plaintiffs fall within zone for CAA claims (esp. § 739); they do not for §§ 2808, 284, 8005, 9705 APA claims—those APA claims dismissed |
| Ultra vires & constitutional claims | Plaintiffs seek equitable ultra vires relief if APA is unavailable; constitutional claims based on Appropriations Clause/Take Care | Defendants: APA exclusive or Plaintiffs outside zone; constitutional claims are merely statutory in disguise (Dalton) | Court permitted ultra vires equitable claims to proceed (zone‑of‑interests not required for ultra vires here) but dismissed constitutional claims recast from statutory allegations per Dalton |
Key Cases Cited
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (U.S. 1992) (standing: injury‑in‑fact, causation, redressability requirements)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (causation/redressability principles for standing)
- Baker v. Carr, 369 U.S. 186 (U.S. 1962) (political question factors)
- Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (U.S. 2012) (political question limits on judicial review)
- Dalton v. Specter, 511 U.S. 462 (U.S. 1994) (statutory‑excess claims against the President are not constitutional claims reviewable outside APA)
- Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (U.S. 2012) (zone‑of‑interests test guidance)
- Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) (prior circuit injunctions and discussion of § 8005/Appropriations Clause)
- El‑Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (courts lack competence to second‑guess military/foreign‑policy judgments)
- NFFE v. United States, 905 F.2d 400 (D.C. Cir. 1990) (agency actions committed to discretion where standards are not judicially manageable)