963 F.3d 926
9th Cir.2020Background
- In Feb–May 2019 DoD, citing 10 U.S.C. §284 and the DoD Appropriations Act transfer authorities (§8005 and §9002), reprogrammed $2.5 billion from DoD accounts to a counterdrug account to fund border-wall projects in the El Centro (CA) and El Paso (NM) sectors. DHS invoked IIRIRA §102(c) waivers to bypass federal and state environmental laws for those projects.
- Sixteen states (led by California and New Mexico) sued, alleging the transfers violated §8005/§9002, the Appropriations Clause, separation of powers, APA, NEPA, and related theories; district court granted partial summary judgment for CA/NM declaring the challenged transfers unlawful as to El Centro and El Paso sectors but denied a permanent injunction to the states (citing duplicative relief in a companion Sierra Club case).
- The Ninth Circuit panel affirmed: it held CA and NM had Article III standing (environmental harms and interference with sovereign law-enforcement), that they had an APA cause of action (fell within §8005’s zone of interests), and that §8005 did not authorize these transfers because (1) the projects were not an "unforeseen military requirement," and (2) Congress had denied funding for the wall.
- The court affirmed declaratory relief but declined to reverse the district court’s denial of a permanent injunction (left open to renewal). Judge Collins dissented, agreeing on at least CA’s standing but concluding there was no cause of action and that transfers were lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | CA/NM: transfers will cause concrete environmental injury (harm to protected species, habitat fragmentation) and injury to sovereign enforcement of state environmental laws | Gov: standing disputed (though not pressed on appeal) | Court: CA and NM have standing—both environmental and quasi-sovereign enforcement injuries are traceable to and redressable by enjoining transfers |
| Right to judicial review / cause of action (APA / zone of interests) | CA/NM: §8005 imposes obligations on DoD; states are "aggrieved" and their interests (protecting environment and state law authority) fall within §8005’s zone of interests | Gov: states lack a cognizable cause of action under APA to challenge DoD reprogramming | Court: States may sue under the APA; their interests are sufficiently congruent with Congress’s (protecting appropriations) and fall within §8005’s zone of interests |
| Statutory interpretation of §8005/§9002 (limits: "unforeseen military requirements" & "not previously denied by Congress") | CA/NM: transfers were for an anticipated political priority (border wall), not an unforeseen military requirement; Congress had effectively denied wall funding | Gov: transfers responded to §284 requests and were within ordinary meaning of "military" and "unforeseen"; Congress did not categorically deny such funding | Court: transfers unlawful—projects were not an unforeseen military requirement and Congress had denied the requested wall funding; §8005(9002) conditions unsatisfied |
| Equitable relief / injunction | CA/NM: sought permanent injunction to stop construction funded by transfers | Gov: challenged remedy; noted overlapping injunctions in companion cases | Court: affirmed denial of permanent injunction to CA/NM (no abuse of discretion) but left door open to renewal; affirmed declaratory judgment invalidating the transfers |
Key Cases Cited
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing requirements and summary-judgment-stage proof)
- Massachusetts v. EPA, 549 U.S. 497 (states’ "special solicitude" and quasi-sovereign interests)
- Bennett v. Spear, 520 U.S. 154 (APA zone-of-interests analysis and focus on the specific statutory provision)
- Patchak v. Zinke, 567 U.S. 209 (zone-of-interests test not especially demanding under APA)
- Clarke v. Sec. Indus. Ass'n, 479 U.S. 388 (zone-of-interests framework)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (limits on Executive power re: spending when Congress has not authorized)
- Dalton v. Specter, 511 U.S. 462 (distinguishing statutory-excess claims from direct constitutional claims; limits on non-APA equitable review)
- Lincoln v. Vigil, 508 U.S. 182 (agency discretion in allocating lump-sum appropriations)
- Sierra Club v. Trump, 929 F.3d 670 (9th Cir.) (companion panel opinion addressing similar §8005 issues)
- Armstrong v. Exceptional Child Ctr., 575 U.S. 320 (equitable Supremacy- Clause remedies and statutory limitations on judge-made causes of action)