379 F. Supp. 3d 883
N.D. Cal.2019Background
- Plaintiffs (Sierra Club and Southern Border Communities Coalition) sued federal officials seeking a preliminary injunction to stop use of redirected federal funds to build border barriers along the U.S.–Mexico border. The suit follows a related states' action.
- After Congress provided $1.375 billion for limited fencing in the Consolidated Appropriations Act of 2019 (CAA), the President declared a national emergency and the Administration identified alternate funding sources (Treasury Forfeiture Fund, DoD §284 counterdrug support via reprogramming under §8005, and potential DoD §2808 military-construction authority).
- DoD reprogrammed funds under §8005 ($1 billion, later $1.5 billion) into the counter-narcotics account and approved §284 support for specified projects in El Paso and Yuma sectors; Treasury made $601 million available from the Forfeiture Fund for Rio Grande Valley projects.
- DHS (Acting Secretary) issued waivers under IIRIRA §102(c) purporting to waive NEPA and other laws for identified project areas; DoD contends its §284 work is support for DHS and that §2808 use is under review but not yet decided.
- Plaintiffs moved for a preliminary injunction challenging: (1) the §8005 reprogramming, (2) use of §284 funds for wall construction, (3) contemplated use of §2808 military-construction funds, and (4) proceeding without NEPA compliance.
- The Court granted in part and denied in part: it enjoined Defendants from constructing the border barrier in Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed under §8005 (finding Plaintiffs likely to succeed on the §8005 challenge and irreparable harm), but did not enjoin §2808 usage (no irreparable-harm showing yet) and held DHS §102(c) waivers likely cover DoD §284 support so NEPA claims were unlikely to succeed as to §284-funded projects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge §8005 reprogramming | Plaintiffs: injury from construction funded via §8005 is fairly traceable to reprogramming; standing exists. | Defendants: reprogramming is distinct administrative action moving funds between DoD accounts; Plaintiffs lack standing to challenge it. | Held: Plaintiffs have standing to challenge §8005 reprogramming (chain of causation plausible). |
| Lawfulness of §8005 transfer to fund border wall (denied-by-Congress / "unforeseen" requirement) | Plaintiffs: transfer violates §8005 because Congress denied the broader border-wall appropriation and the need is not "unforeseen". | Defendants: §8005 permits transfers for higher-priority unforeseen military requirements; Congress did not expressly deny DoD §284 funding; transfer lawful. | Held: Plaintiffs likely to succeed — transfer appears to fund an item Congress denied and is not based on an "unforeseen" military requirement; accepting Defendants' view would raise serious separation-of-powers/Appropriations Clause problems. |
| Use of §284 (DoD support for DHS construction) and NEPA preemption | Plaintiffs: DoD must comply with NEPA when constructing under §284; DHS §102(c) waiver cannot immunize DoD actions funded by DoD. | Defendants: §284 is derivative support for DHS; DHS §102(c) waivers apply to projects where DHS requested support, so NEPA is waived for §284-funded DHS projects. | Held: Court likely to find NEPA waivers applicable to §284 support requested by DHS; Plaintiffs unlikely to succeed on NEPA claim as to those §284 projects. |
| Standing and irreparable harm re: §2808 military-construction diversion | Plaintiffs: credible threat §2808 will be used; injury to members and organizations; irreparable harm to recreation and mission. | Defendants: No final decision to use §2808 has been made; any harm speculative, cannot justify injunction. | Held: Plaintiffs have standing re: §2808 (credible threat), but have not shown likely irreparable harm yet as locations and decisions remain unspecified; injunction on §2808 denied without prejudice. |
Key Cases Cited
- Marbury v. Madison, 1 U.S. (1 Cranch) 137 (U.S. 1803) (judicial duty to say what the law is)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (U.S. 2008) (preliminary-injunction standard; plaintiff must show likelihood of success and irreparable harm)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (Article III standing requirements)
- Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (U.S. 2015) (availability of injunctive relief against federal officers; ultra vires review)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (U.S. 1952) (separation of powers and limits on executive authority)
- U.S. Dep't of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) (Appropriations Clause principles: money must be spent only as appropriated)
- United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) (interpretation of appropriations riders and limits on spending)
- In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013) (courts review whether agencies comply with statutory limits)