408 F.Supp.3d 840
W.D. Tex.2019Background
- Plaintiffs El Paso County and Border Network for Human Rights (BNHR) challenged the President's February 15, 2019 proclamation declaring a national emergency at the southern border and directing Defense Department use of funds to build border barriers.
- Congress had appropriated $1.375 billion in the 2019 Consolidated Appropriations Act (CAA) for primary pedestrian fencing limited to the Rio Grande Valley sector and included § 739 limiting changes to programs proposed in the President's budget except by reprogramming/transfer provisions.
- The Administration announced it would supplement that funding by using (a) $2.5 billion via DOD transfer authority for counterdrug activities (§ 284 / §8005 transfers) and (b) $3.6 billion in military construction funds under 10 U.S.C. § 2808.
- Plaintiffs alleged the funding plan violated the CAA, the Appropriations Clause, the NEA, and the APA; they sought summary judgment and injunctive relief. Defendants moved to dismiss or for summary judgment.
- The court found Plaintiffs had Article III standing (El Paso County: reputational and economic injuries; BNHR: organizational diversion of resources) and that the proclamation/plan violated the CAA generally and § 739 specifically; summary judgment was granted for Plaintiffs and Defendants' cross-motion denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | El Paso County is the object of the action and suffers reputational and imminent economic injury; BNHR diverted resources to counteract harms. | Defendants: injuries speculative, not traceable or redressable; BNHR lacks organizational nexus. | Granted: El Paso County and BNHR have standing (including standing to challenge likely § 2808 use). |
| Use of § 284 / §8005 transfers | Plaintiffs argued DOD exceeded authority in funding wall construction. | Defendants relied on §8005 transfer authority; Supreme Court stay in Sierra Club indicated limited judicial review of §8005 transfers. | Court declined to decide §8005/§284 exceedance (party argument held unviable in light of Supreme Court stay). |
| Use of § 2808 military construction funds | Plaintiffs: substantial risk DOD will divert §2808 funds and will be harmed (e.g., Fort Bliss deferral). | Defendants: §2808 is available and CAA did not repeal/limit permanent statutes; Congress did not intend to disable other funding authorities. | Plaintiffs have standing to challenge §2808 use; court relied on more dispositive CAA holdings to resolve case and noted substantial risk of diversion. |
| CAA and § 739 limits on funding | Plaintiffs: the Administration's plan conflicts with CAA's specific appropriation for Rio Grande Valley and §739 forbids using appropriated funds to increase programs proposed in the President's budget except via reprogramming/transfers in an appropriations act. | Defendants: CAA did not expressly modify or repeal permanent authorities; Salazar/Lincoln principles counsel narrow construction of conflicts; appropriations must be read contextually. | Held for Plaintiffs: plan violates the CAA generally and §739 specifically; specific CAA appropriation controls and §739 bars the funding plan. Summary judgment for Plaintiffs. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing injury-in-fact and object-of-action principles)
- Bennett v. Spear, 520 U.S. 154 (1997) (causation/redressability where agency action has coercive effect)
- Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) (interpretation of lump-sum appropriations and agency discretion)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (disfavor repeals by implication in appropriations context)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (organizational standing via diversion of resources)
- Meese v. Keene, 481 U.S. 465 (1987) (reputational injury and need to take affirmative steps can establish standing)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (limits on speculative chain-of-events injuries)
- Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) (reputational injury as cognizable harm)
- Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019) (district court ruling addressing related emergency/funding claims; discussed in opinion)