On February 18, 2019, a coalition of sixteen states filed suit against Defendants
Now pending before the Court is Plaintiffs' motion for a preliminary injunction, briefing for which is complete. See Dkt. Nos. 59 ("Mot."), 89 ("Opp."), 112 ("Reply"). The Court held a hearing on this motion on May 17, 2019. See Dkt. No. 159. In short, Plaintiffs seek to prevent executive officers from using redirected federal funds for the construction of a barrier on the U.S.-Mexico border.
It is important at the outset for the Court to make clear what this case is, and is not, about. The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. These policy questions are the subject of extensive, and often intense, differences of opinion, and this Court cannot and does not express any view as to them. See Trump v. Hawaii , --- U.S. ----,
Assessing whether Defendants' actions not only conform to the Framers' contemplated division of powers among co-equal branches of government but also comply with the mandates of Congress set forth in
After carefully considering the parties' arguments, the Court DENIES Plaintiffs' motion.
I. LEGAL STANDARD
A preliminary injunction is a matter of equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. ,
II. ANALYSIS
In the pending motion, Plaintiffs seek to enjoin Defendants from using certain diverted federal funds and resources for border barrier construction. Specifically, Plaintiffs move to enjoin Defendants from: (1) invoking Section 8005's reprogramming authority to channel funds into DoD's drug interdiction fund, (2) invoking Section 284 to divert monies from DoD's drug interdiction fund for border barrier construction on the southern border of New Mexico, (3) invoking Section 9705 to divert monies from the Treasury Forfeiture Fund for border barrier construction,
Defendants oppose each basis for injunctive relief. Defendants further contend that (1) the Plaintiffs lack standing to bring their Sections 8005 and 9705 claims, and (2) the Court is not the proper venue to challenge border barrier construction in New Mexico. The Court addresses these threshold issues first before turning to
A. Article III Standing
A plaintiff seeking relief in federal court bears the burden of establishing "the irreducible constitutional minimum" of standing. Spokeo, Inc. v. Robins , --- U.S. ----,
"States are not normal litigants for the purposes of invoking federal jurisdiction," and are "entitled to special solicitude in [the] standing analysis." Massachusetts v. EPA ,
1. New Mexico Has Standing for Its Section 8005 Claim.
Only New Mexico contends that it has standing to challenge Defendants' reprogramming of funds under Section 8005. See Reply at 2 (arguing that "Defendants' actions [under Section 8005] will cause concrete and particularized injuries-in-fact to New Mexico's environment and wildlife, giving New Mexico standing"). Defendants argue that New Mexico lacks standing to challenge Defendants' invocation of Section 8005 to reprogram funds into the drug interdiction fund, so that Defendants can then divert that money wholesale to border barrier construction using Section 284. See Opp. at 17-18.
Nor does Lujan impose Defendants' proffered strict "object" test. The Lujan Court explained that "when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish."
No complicated causation inquiry is necessary here, as there are no independent absent actors. More important, if there were ever a case where standing exists even though the challenged government action is nominally directed to some different "object," this is it. Neither the parties nor the Court harbor any illusions that the point of reprogramming funds under Section 8005 is to use those funds for border barrier construction. And under Ninth Circuit law, there is no requirement that the challenged conduct be the last link in the causal chain. Rather, even if there is an intervening link between the Section 8005 reprogramming and the border barrier construction itself, any injury caused by the border barrier construction is nonetheless "fairly traceable" to the Section 8005 reprogramming under the circumstances. See
2. Plaintiffs Have Standing for Their Section 9705 Claim.
Defendants argue that no state has standing to challenge the Treasury's decision to allocate Treasury Forfeiture Fund ("TFF") money to border barrier
Defendants ask too much of Plaintiffs. A plaintiff need not present undisputable proof of a future harm. The injury-in-fact requirement instead permits standing when a risk of future injury is "at least imminent ." See Lujan ,
At this stage, Plaintiff States have carried their burden to demonstrate that there is a "credible threat" that Defendants' diversion of TFF funds will have economic ramifications on the states. If the only information before the Court were bald allegations questioning the TFF's solvency and the States' prospects of future equitable sharing payments on the one hand, and Mr. Farley's declaration assuaging those concerns on the other, then whether Plaintiffs could demonstrate a "credible threat" would be a closer call. But that is not the case. Plaintiffs instead cite to recent statements by the Treasury characterizing "especially troubling" drops in revenue which call into question its ability to cover "basic mandatory [TFF] costs." See States RJN 43, at 4. The Court finds these statements demonstrate a "credible threat," such that Plaintiffs have satisfied the injury-in-fact requirement for Article III standing. See Nat. Res. Def. Council ,
B. Venue is Proper in This Court.
Because Defendants challenge Plaintiffs' standing as to all claims except New Mexico's Section 284 claim, Defendants assert that New Mexico is the only Plaintiff that can plausibly state an alleged injury and thus that venue is improper in the Northern District of California. Opp. at 30. But New Mexico's ability to seek relief in this Court relies on California having standing, which the parties do not dispute would render venue proper for all claims in
C. Plaintiffs Have Not Shown They Are Entitled to a Preliminary Injunction.
Applying the Winter factors, the Court finds Plaintiffs are not entitled to a preliminary injunction at this time.
1. Likelihood of Success on the Merits
The crux of Plaintiffs' case is that Defendants' methods for funding border barrier construction are unlawful. And Plaintiffs package that core challenge in several ways. For present purposes, Plaintiffs contend that Defendants' actions (1) are unconstitutional, (2) exceed Defendants' statutory authority-in other words, are ultra vires -(3) violate the APA because they are arbitrary and capricious, and (4) violate NEPA.
The Court begins with a discussion of the law governing the appropriation of federal funds. Under the Appropriations Clause of the Constitution, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, § 9, cl. 7. "The Clause's words convey a 'straightforward and explicit command': No money 'can be paid out of the Treasury unless it has been appropriated by an act of Congress.' " U.S. Dep't of Navy v. FLRA ,
"Federal statutes reinforce Congress's control over appropriated funds," and under federal law "appropriated funds may be applied only 'to the objects for which the appropriations were made.' "
Rather than dispute these principles, Defendants contend that the challenged conduct complies with them. See Opp. at 26 ("The Government is not relying on independent Article II authority to undertake border construction; rather, the actions alleged are being undertaken pursuant to express statutory authority."). Accordingly, one of the key issues in dispute is whether Congress in fact provided "express statutory authority" for Defendants' challenged actions.
Turning to Plaintiffs' claims, it is necessary as a preliminary matter to outline the measure and lens of reviewability
Once a case or controversy is properly before a court, in most instances that court may grant injunctive relief against executive officers to enjoin both ultra vires acts-that is, acts exceeding the officers' purported statutory authority-and unconstitutional acts. The Supreme Court recently reaffirmed this broad equitable power:
It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials....What our cases demonstrate is that, in a proper case, relief may be given in a court of equity...to prevent an injurious act by a public officer.
The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.
Armstrong ,
Misunderstanding the presumptive availability of equitable relief to enforce federal law, Defendants contend that Plaintiffs may only challenge Defendants' conduct through the framework of the APA, and ignore Plaintiffs' ultra vires challenges entirely. See Opp. at 12 ("Because Congress did not create a private right of action to enforce the statutes that form the basis of the States' challenge, their claims are governed by the [APA], 5 U.S.C. § et seq. ") But as the Citizen Group Plaintiffs detail at length in their reply brief, ultra vires review exists outside of the APA framework. See Plaintiffs' Reply at 2-5, Sierra Club v. Trump , No. 4:19-cv-00892-HSG (N.D. Cal. May 2, 2019), ECF No. 91 ("Citizen Groups Reply"); see also Dkt. No. 129 (Brief of Amici Curiae Federal Courts Scholars).
Due to their mistaken framing of the scope of ultra vires review, Defendants also incorrectly posit that Plaintiffs must establish that they fall within the "zone of interests" of a particular statute to challenge actions taken by the government under that statute. See Opp. at 18- 19. The "zone of interests" test, however, only relates to statutorily-created causes of
In reviewing the lawfulness of Defendants' conduct, the Court thus begins each inquiry by determining whether the disputed action exceeds statutory authority. For unless an animating statute sanctions a challenged action, a court need not reach the second-level question of whether it would be unconstitutional for Congress to sanction such conduct. See Nw. Austin Mun. Util. Dist. No. One v. Holder ,
At the President's direction, Defendants intend to divert $ 2.5 billion, $ 1 billion of which is the subject of the pending motion, to the DoD's drug interdiction fund for border barrier construction.
Plaintiffs challenge both the augmentation of the drug interdiction fund through Section 8005 and the use of funds from the drug interdiction fund under Section 284. Turning first to the augmentation of funds, Section 8005 authorizes the reprogramming of up to $ 4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense." The transfer must be (1) either (a) DoD working capital funds or (b) "funds made available in this Act to the [DoD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in no case where the item for which funds are requested has been denied by Congress. Plaintiffs argue that Defendants' actions fail the last three requirements. The Court first considers whether the reprogramming Defendants propose here is for an item for which funds were requested but denied by Congress.
i. Plaintiffs are Likely to Show That the Item for Which Funds Are Requested Has Been Denied by Congress.
Plaintiffs argue that Defendants are transferring funds for a purpose previously denied by Congress. Mot. at 24. Defendants dispute, however, whether Congress's affirmative appropriation of funds in the CAA to DHS constitutes a "denial" of appropriations to DoD's "counter-drug activities in furtherance of DoD's mission under [Section] 284." Opp. at 19. In their view, "the item" for which funds are requested, for present purposes, is counterdrug activities under Section 284. Id. at 19-20. And Defendants maintain that "nothing in the DHS appropriations statute indicates that Congress 'denied' a request
Plaintiffs have shown a likelihood of success as to their argument that Congress previously denied "the item for which funds are requested," precluding the proposed transfer. On January 6, 2019, the President asked Congress for "$ 5.7 billion for construction of a steel barrier for the Southwest border," explaining that the request "would fund construction of a total of approximately 234 miles of new physical barrier." Citizen Groups RJN Ex. A, at 1. The request noted that "[a]ppropriations bills for fiscal year (FY) 2019 that have already been considered by the current and previous Congresses are inadequate to fully address these critical issues," to include the need for barrier construction funds.
As Defendants acknowledge, in interpreting a statute, the Court applies the principle that "the plain language of [the statute] should be enforced according to its terms, in light of its context." ASARCO, LLC v. Celanese Chem. Co. ,
The Court finds that the language and purpose of Section 8005 and Section 2214(b) likely preclude Defendants' attempt to transfer $ 1 billion from funds Congress previously appropriated for military personnel costs to the drug interdiction fund for the construction of a border barrier. Defendants argue that "Congress never denied DoD funding to undertake the [Section] 284 projects at issue," Opp. at 20, such that Section 8005 and Section 2214(b) are satisfied. But in the Court's view, that reading of those sections is likely wrong, when the reality is that Congress was presented with-and declined to grant-a $ 5.7 billion request for border barrier construction. Border barrier construction, expressly, is the item Defendants now seek to fund via the Section 8005 transfer, and Congress denied the requested funds for that item. See
ii. Plaintiffs are Likely to Show That the Transfer is Not Based on "Unforeseen Military Requirements."
Plaintiffs next argue that any need for border barrier construction-to the extent there is a need-was long "foreseen." Mot. at 23. The Citizen Group Plaintiffs highlight that the President supported his fiscal year 2019 budget request for border barrier funding with a description that such a barrier "is critical to combating the scourge of drug addiction that leads to thousands of unnecessary deaths." Motion for Preliminary Injunction at 16, Sierra Club v. Trump , No. 4:19-cv-00892-HSG (N.D. Cal. Apr. 4, 2019) ("Citizen Groups Mot.") (quoting Citizen Groups RJN Ex. R, at 16).
In response, Defendants again seek to minimize the pass-through nature of DoD's counterdrug activities authority under Section 284. While not disputing that the President requested-and was denied-more-comprehensive funds for border barrier construction, Defendants instead note that "[t]he President's 2019 budget request did not propose additional funding for DoD's counter-drug activities under [Section] 284." Opp. at 20. Defendants then argue that because DHS only formally requested Section 284 support in February 2019, the need for Section 284 support only become foreseen in February 2019.
Separate and apart from the Court's analysis above regarding whether Congress previously denied funding for the relevant item, Plaintiffs also have shown a likelihood of success as to their argument
Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018. See Citizen Groups Ex. R (February 2018 White House Budget Request describing "the Administration's proposal for $ 18 billion to fund the border wall"); see also States RJN Exs. 14-20 (failed bills);
Interpreting "unforeseen" to refer to the request for DoD assistance, as opposed to the underlying "requirement" at issue, also is not reasonable. By Defendants' logic, every request for Section 284 support would be for an "unforeseen military requirement," because only once the request was made would the "need to exercise authority" under the statute be foreseen. There is no logical reason to stretch the definition of "unforeseen military requirement" from requirements that the government as a whole plainly cannot predict (like the need to repair hurricane damage) to requirements that plainly were foreseen by the government as a whole (even if DoD did not realize that it would be asked to pay for them until after Congress declined to appropriate funds requested by another agency). Nothing presented by the Defendants suggests that its interpretation is what Congress had in mind when it imposed the "unforeseen" limitation, especially where, as here, multiple agencies are openly coordinating in an effort to build a project that Congress declined to fund. The Court thus finds it likely that Plaintiffs will succeed on this claim.
The Court also finds it likely that Defendants' reading of these provisions, if accepted, would pose serious problems under the Constitution's separation of powers principles. Statutes must be interpreted to avoid a serious constitutional problem where another "construction of the statute is fairly possible by which the question may be avoided." Zadvydas v. Davis ,
As Plaintiffs point out, the upshot of Defendants' argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $ 1 billion to the Section 284 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate only $ 1.375 billion for that purpose; (2) Congress's total fiscal year 2019 appropriation available under Section 284 for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States" was $ 517 million, much of which already has been spent; and (3) Defendants have acknowledged that the Administration considered reprogramming funds for border barrier construction even before the President signed into law Congress's $ 1.375 billion appropriation. See Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. VI,
The Court agrees with the Citizen Group Plaintiffs that reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an "unbounded authorization for Defendants to rewrite the federal budget," Citizen Groups Reply at 14, and finds that Defendants' reading likely would violate the Constitution's separation of powers principles. Defendants contend that because Congress did not reject (and, indeed, never had the opportunity to reject) a specific request for an appropriation to the Section 284 drug interdiction fund, DoD can use Section 8005 to route anywhere up to the $ 4 billion cap set by that statute, to be spent for the benefit of DHS via Section 284. But this reading of DoD's authority under the statute would render meaningless Congress's constitutionally-mandated power to assess proposed spending, then render its binding judgment as to the scope of permissible spending. See FDA v. Brown & Williamson Tobacco Corp. ,
While Defendants argue that the text and history of Section 284 suggest that their proposed transfer and use of the funds are within the scope of what Congress has permitted previously, Opp. at 21, that argument only highlights the serious constitutional questions that accepting their position would create. First, Defendants note that in the past DoD has completed what they characterize as "large-scale
Similarly, if "unforeseen" has the meaning that Defendants claim, Section 8005 would give the agency making a request for assistance under Section 284 complete control over whether that condition is met, simply by virtue of the timing of the request. As here, DHS could wait and see whether Congress granted a requested appropriation, then turn to DoD if Congress declined, and DoD could always characterize the resulting request as raising an "unforeseen" requirement because it did not come earlier. Under this interpretation, DoD could in essence make a de facto appropriation to DHS, evading congressional control entirely. The Court finds that this interpretation likely would pose serious problems under the Appropriations Clause, by ceding essentially boundless appropriations judgment to the executive agencies.
Finally, the Court has serious concerns with Defendants' theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute. Counsel for Defendants advanced this theory at the hearing on this motion, arguing that when Congress passed the recent DoD appropriations act containing Section 8005, it "could have" expressly "restrict[ed] that authority" to preclude reprogramming funds for border barrier construction. See Dkt. No. 159 at 76:16-77:3. According to Defendants: "If Congress had wanted to deny DOD this specific use of that [reprogramming] authority, that's something it needed to actually do in an explicit way in the appropriations process. And it didn't." Id. at 77:21-24. But it is not Congress's burden to prohibit the Executive from spending the Nation's funds: it is the Executive's burden to show that its desired use of those funds was "affirmatively approved by Congress." See FLRA ,
To the extent Defendants believe the Ninth Circuit's decision in McIntosh suggests anything to the contrary, the Court disagrees. Defendants appeared to argue at the hearing on this motion that McIntosh stands for the principle that the Executive enjoys unfettered spending power
Unlike in McIntosh , where the sole dispute concerned the scope of an external limitation on an otherwise-authorized spending of money, the present dispute concerns the scope of limitations within Section 8005 itself on the authorization of reprogramming funds. Whether Congress gives authority in the first place is not the same issue as whether Congress later restricts that authority. And it cannot be the case that Congress must draft an appropriations rider to breathe life into the internal limitations in Section 8005 establishing that the Executive may only reprogram money based on unforeseen military requirements, and may not do so where the item for which funds are requested has been denied by Congress. To adopt Defendants' position would read out these limitations entirely, which the Court cannot do. See Life Techs. Corp. v. Promega Corp. , --- U.S. ----,
For all of these reasons, the Court finds that Plaintiffs have shown a likelihood of success as to their argument that the reprogramming of $ 1 billion under Section 8005 to the Section 284 account for border barrier construction is unlawful.
b. Section 9705
At the President's direction, Defendants intend to divert $ 601 million
As a threshold matter, Defendants contend that how the Treasury allocates funds is unreviewable because it is committed to the Treasury's discretion by law, as "the agency must be allowed to administer its statutory responsibilities" in ways "it sees as the most effective or desirable." Opp. at 14 (quoting Lincoln v. Vigil ,
The Court finds Defendants' reliance on Lincoln and Serrato unavailing, and finds that the transfer of funds under Section 9705 is reviewable. Under the APA, Congress may preclude review by statute where the administrative action is committed by law to an agency. See
Defendants maintain that such special discretion exists under Lincoln and Serrato . In Lincoln , the Supreme Court held that the Indian Health Service's decision to discontinue a pilot program called the Indian Children's Program and reallocate funds from a lump-sum appropriation was committed to agency discretion by law under Section 701(a)(2).
[A]n agency's allocation of funds from a lump-sum appropriation requires a complicated balancing of a number of factors which are peculiarly within its expertise: whether its resources are best spent on one program or another; whether it is likely to succeed in fulfilling its statutory mandate; whether a particular program best fits the agency's overall policies; and, indeed, whether the agency has enough resources to fund a program at all.
Defendants' diversion of $ 601 million from the TFF to fund border barrier construction fails the Lincoln unreviewability test in two respects. First, Congress's funding of the TFF arguably does not qualify as the sort of lump-sum appropriation present in Lincoln and Serrato . Rather, Section 9705 delineates a comprehensive list of payments for which the TFF "shall be available," thus specifying how TFF funds may be used. More important, Defendants' purported authority for diverting funds from the TFF itself establishes the limitation on discretion which Plaintiffs seek to vindicate here. Section 9705(g)(4)(B) limits transfers for use "in connection with [ ] law enforcement activities." And Plaintiffs maintain that Defendants have not met this limitation. See Mot. at 25-26. Thus, even accepting Defendants' argument that the APA precludes judicial review so long as the Treasury "meet[s] permissible statutory objectives," see Opp. at 14, judicial review is available because Plaintiffs maintain that the Treasury is transferring funds in a statutorily impermissible manner. See Hawaii v. Trump ,
Although it finds that whether Defendants' conduct meets Section 9705's requirements is reviewable, the Court need not now address whether Plaintiffs are likely to succeed on the merits of their claim that the use of funds for border barrier construction is not "in connection with a law enforcement activity." For reasons discussed below, the Court finds that Plaintiffs have not met their independently necessary burden of showing a likelihood of irreparable harm as to the diversion of TFF funds so as to be entitled to a preliminary injunction.
c. NEPA
After Plaintiffs filed the instant motion-and one day before Defendants
Defendants contend that such waivers preclude Plaintiffs from advancing a NEPA claim. Opp. at 25 (citing In re Border Infrastructure Envtl. Litig. ,
Neither set of Plaintiffs appears to contest that the waivers, if applicable, would be dispositive of the NEPA claims. See Reply at 16 ("Plaintiffs do not dispute DHS's ability to waive NEPA compliance when constructing barriers pursuant to [IIRIRA], with funds specifically appropriated by Congress to be used for that construction.") (emphasis in original); see also In re Border Infrastructure Envtl. Litig. ,
The Court finds that Plaintiffs are not likely to succeed on their NEPA argument because of the waivers issued by DHS. DoD's authority under Section 284 is derivative. Under the statute, DoD is limited to providing support (including construction support) to other agencies, and may invoke its authority only in response to a request from such an agency. See
2. Likelihood of Irreparable Injury
Plaintiffs advance two theories of irreparable harm: (1) New Mexico faces irreparable environmental harm from border barrier construction; and (2) all States face irreparable harm from the diversion of funds from the TFF. Mot. at 29-33. Defendants take issue with both theories. Opp. at 31-34.
a. New Mexico's Environmental Harm
New Mexico's asserted environmental harm stems largely from Defendants' alleged failure to comply with NEPA. See Mot. at 29 ("Thus, irreparable injury exists when the agency fails to consider the environmental concerns raised by NEPA such that governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.") (internal quotation marks omitted). But for the reasons discussed above, the Court finds Plaintiffs are unlikely to succeed on the merits of their NEPA claim. Plaintiffs also allege, however, that beyond the procedural NEPA harm, Defendants' overall unlawful reprogramming and use of funds under Sections 8005 and 284 for border barrier construction "will cause irreparable injury to wildlife in the area and New Mexico as a whole." Id. at 30. And among other things, Defendants' proposed border barrier construction in the El Paso Sector Project 1 portion of New Mexico allegedly will (1) impede wildlife connectivity of over 100 species of wildlife, including the Mexican gray wolf, mountain lion, bobcat, mule deer, and javelina; (2) generate "noise, deep holes for fence posts, vehicle traffic, lighting, and other [construction] disturbances," which will "kill, injure, or alter the behavior of" several species, including the Aplomado falcon and Gila monster; (3) limit New Mexico residents' recreational
Defendants posit that Plaintiffs' "vague allegations," only supported by "declarations [that] are heavy on conjecture and light on detail" concerning harm to local species, are insufficient to satisfy Plaintiffs' burden of demonstrating a likelihood of irreparable injury. Opp. at 31-32. More to the point, Defendants maintain that New Mexico fails to meet its burden of showing that Defendants' plan "is likely to cause population-level harm," which Defendants claim requires proof of a "definitive threat" to the species as a whole, and "not mere speculation." Id. at 32 (quoting Nat'l Wildlife Fed'n v. Burlington N.R.R. ,
As the Ninth Circuit has explained, "it would be incorrect to hold that all potential environmental injury warrants an injunction." League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton ,
Contrary to Defendants' suggestion, the irreparable-injury inquiry does not require a showing of population-level harm or an extinction-level threat. In fact, none of Defendants' proffered cases establish this standard. See N.M. Dep't of Game & Fish v. DOI ,
However, whether or not New Mexico has proffered sufficient evidence to meet its burden of showing a likelihood of irreparable environmental harm from the use of reprogrammed and diverted funds under Sections 8005 and 284 for border barrier construction in the El Paso Sector Project 1 region, the contested use of such funds is no longer likely before resolution of the case on the merits. This is because the Court has enjoined the relevant Defendants in the Citizen Groups' action from proceeding with such construction. See Order at 55, Sierra Club v. Trump , No. 4:19-cv-00892-HSG,
b. States' Harm from Diversion of TFF Funds
Plaintiffs' second theory of harm is that the diversion of TFF funds runs the risk of "depriv[ing] Plaintiff States of the same opportunity to receive TFF funds that they have enjoyed for years." Mot. at 31. Plaintiffs contend that a $ 601 million diversion "undermines the continued viability of TFF" moving forward and "jeopardizes the States' ability to collect their pending equitable share claims of millions of dollars that they are entitled to receive after dedicating time and resources to participating in joint law enforcement efforts." Id. at 32. In other words, Plaintiffs' alleged irreparable harms are that they (1) will not receive equitable share claims already owed, and (2) may not receive equitable share claims in the future.
Defendants respond to both irreparable injury bases with a declaration of the TEOAF Director, John M. Farley, who manages the TFF. See Farley Decl. ¶ 2. Mr. Farley acknowledges that equitable sharing payments to state and local enforcement agencies are "mandatory" TFF expenses. Id. ¶ 8. Mr. Farley explains, however, that "Strategic Support is an amount of unobligated funds at the end of the fiscal year, after accounting for equitable sharing and other mandatory expenses...[which] may be used in connection with the law enforcement activities of
Because Strategic Support funding at the end of any fiscal year has already taken account of current fiscal year mandatory expenses and anticipated liabilities for the following fiscal year, Mr. Farley provides that "the decision to make Strategic Support funding available in fiscal year 2019 will have no impact on the amount of money state and local entities receive through equitable sharing." Id. ¶¶ 13, 23. And the Treasury predicts that following the diversion of $ 601 million in strategic support payments to DHS, the "projected unobligated balance carry-over to fiscal year 2020 will be approximately $ 507 million." Id. ¶ 26.
Given Mr. Farley's representations, Defendants argue that there is no risk of irreparable harm to Plaintiffs from the diversion of TFF funds: "Because Treasury's Strategic Support payments to DHS do not pose any threat to the solvency of the TFF or diminish the equitable sharing payments to which the States may be entitled under [ Section] 9705, the States have not established a likelihood of irreparable injury." Opp. at 31. Plaintiffs' substantive response to the Farley declaration is to characterize it as a "self-serving declaration" that must be disregarded. But Plaintiffs' support for this proposition-Nigro v. Sears, Roebuck & Co. -stands for the exact opposite proposition. See
At the hearing on this motion, Plaintiffs shifted their criticism of Mr. Farley to his TFF balance calculation. See Dkt. No. 138 at 45:12-47:1. Plaintiffs argued that Mr. Farley failed to consider contingent liabilities and noted that the TFF could theoretically be underwater based on such liabilities and other data contained in TEOAF's fiscal year 2020 budget. See
Most important, Plaintiffs' ignore that the burden is theirs to demonstrate that irreparable injury is likely in the absence of an injunction. Winter ,
3. Balance of Equities and Public Interest
When the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell ,
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE Plaintiffs' motion for a preliminary injunction. A case management conference is set for June 5, 2019 at 2:00 p.m. At the case management conference, the parties should be prepared to discuss a plan for expeditiously resolving this matter on the merits, whether through a bench trial, cross-motions for summary judgment, or other means. The parties must submit a joint case management statement by May 31, 2019.
IT IS SO ORDERED.
Notes
Secretary Bernhardt was named in his then-capacity as Acting Secretary, but was subsequently confirmed as Secretary by the U.S. Senate on April 11, 2019.
Acting Secretary McAleenan is automatically substituted for former Secretary Kirstjen M. Nielsen. See Fed. R. Civ. P. 25(d).
The relevant background for this and the Citizen Groups' action is the same. The Court thus incorporates in full here the factual background and statutory framework as set forth in its preliminary injunction order in the Citizen Groups' action. See Order, Sierra Club v. Trump , No. 4:19-cv-00892-HSG,
Only the State Plaintiffs challenge the diversion of funds under Section 9705.
Defendants also argue New Mexico lacks standing because it falls outside Section 8005's "zone of interests." See Opp. at 18-19. Because the Court finds Defendants' "zone of interests" challenge derivative of Defendants' misunderstanding of ultra vires review, the Court addresses those matters together, below. See infra Section II.C.1.
The Court takes judicial notice of various documents, for reasons set forth in the Court's preliminary injunction order in the Citizen Groups' action. See Order, Sierra Club v. Trump , No. 4:19-cv-00892-HSG,
Congress may displace federal courts' equitable power to enjoin unlawful executive action, but a precluding statute must at least display an "intent to foreclose" injunctive relief. Armstrong ,
The Court finds it need not address Plaintiffs' claim that the use of the various reprogramming and diversion mechanisms is arbitrary and capricious under the APA. Plaintiffs' APA arguments are largely repackaged ultra vires claims. See, e.g. , Reply at 15 (arguing it is arbitrary and capricious to act in excess of statutory authority). To the extent Plaintiffs' APA claim is based on Defendants' alleged departure from internal procedure concerning Section 8005 reprogramming, the Court finds Plaintiffs' are unlikely to succeed on the merits of that argument. Among other reasons, this sort of DoD procedure does not appear to be the kind of "binding internal policy" that might demand an explanation if departed from. Cf. Nat'l Ass'n of Home Builders v. Norton ,
The Court here only considers the lawfulness of Defendants' March 25, 2019 invocation of Section 8005 to reprogram $ 1 billion, given the parties' agreement that this order need not address Defendants' recently announced intent to use Sections 8005, 9002, and 284 to fund border barrier construction in the El Centro Sector and Tucson Sector Projects. The parties reached this agreement after counsel for Defendants represented at the hearing on this motion that "no construction will start [with those funds] until at least 45 days from" the May 17, 2019 hearing date. See Dkt. No. 159 at 55:16-17. The parties confirmed that they would agree to a schedule to supplement the record, to permit the Court to review in a timely manner the lawfulness of the new reprogramming, under the framework set forth in this order. Id. at 59:14-60:2. The parties have since agreed on a schedule. See Dkt. No. 163.
See Fox News, Mick Mulvaney on chances of border deal, Democrats ramping up investigation of Trump admin , YouTube (Feb. 10, 2019), https://www.youtube.com/watch?v=l_Z0xx_zS0M (statement by Acting White House Chief of Staff that "[w]e'll take as much money as you can give us, and then we'll go off and find the money someplace else, legally, in order to secure that southern barrier. But this is going to get built, with or without Congress.").
Because the Court has found that Plaintiffs are likely to succeed on their argument that the reprogramming violates the two Section 8005 conditions discussed above, it need not reach at this stage their argument that the border barrier project is not a "military requirement" at all.
Defendants do not convincingly explain why the amount now sought to be transferred under Section 8005 could not have been sought directly from Congress as part of the fiscal year 2019 appropriation to the DoD Section 284 account to cover requests for counterdrug support, given that the President has consistently maintained since before taking office that border barrier funding is necessary. If the answer is that the Administration expected, or hoped, that Congress would appropriate the funds to DHS directly, that highlights rather than mitigates the present problem with Defendants' position.
Defendants have now acknowledged that all of the money they plan to spend on border barrier construction under Section 284 is money transferred into that account under Section 8005. See Dkt. No. 151 at 4. Given this acknowledgment, and the Court's finding that Plaintiffs are likely to show that the Section 8005 reprogramming is unlawful, the Court need not at this stage decide whether Defendants would have been permitted to use for border barrier construction any remaining funds that Congress appropriated to the Section 284 account for fiscal year 2019. The Court notes that the House confirmed in its own lawsuit that it "does not challenge the expenditure of any remaining appropriated funds under section 284 on the construction of a border wall." United States House of Representatives' Application for a Preliminary Injunction at 30, U.S. House of Representatives v. Mnuchin , No. 1:19-cv-00969 (TNM) (D.D.C. Apr. 23, 2019), ECF No. 17; see also House Br. at 11 (requesting preliminary injunction "prohibiting defendants from transferring and spending funds in excess of what Congress appropriated for counter-narcotics support under
Notably, the House does not challenge this expenditure in either its own lawsuit or in its amicus brief in this case. See Complaint, U.S. House of Representatives v. Mnuchin , No. 1:19-cv-00969 (TNM) (D.D.C. Apr. 5, 2019), ECF No. 1; House Br.
Defendants' position on the reviewability of Plaintiffs' challenge to the diversion of TFF funds is, in this sense, symptomatic of Defendants' general misunderstanding of ultra vires claims.
Plaintiffs argue that "[i]n another context, Congress explicitly allows the DOD Secretary to request 'the head of another agency responsible for the administration of navigation or vessel- inspection laws to waive compliance with those laws to the extent the Secretary considers necessary.' " Reply at 17 (citing 46 U.S.C. 501(a) ). The Court finds this statute to be irrelevant to the issue here. In this case, DoD is acting solely in response to DHS's request for support under Section 102; DHS has undisputed authority to issue waivers under that section; and it would not make sense to make NEPA compliance a condition of DoD's derivative support notwithstanding DHS's waiver.
To the extent Plaintiffs' argument is that Defendants "cannot have it both ways," the Court agrees, to the extent it found a likelihood of success as to Plaintiffs' Section 8005 argument, as discussed in Section II.C.1.a, above.
Although the court in Maughan found a lack of irreparable injury because evidence showed the wolf species population was growing despite the challenged action, it nonetheless stated: "The evidence in the current record shows that the [challenged] program for hunting wolves will not result in the loss of the species as a whole." See
At the hearing on this motion, counsel for Defendants essentially acknowledged that this is the appropriate standard. Dkt. No. 159 at 104:4-6 ("And I don't want to overstate that because it's -- as my colleagues on the other side have pointed out, it's not extinction.")
TEOAF also sets aside funding to cover future fiscal year expenses. See Farley Decl. ¶¶ 10-11 (explaining the process).
To the extent Plaintiffs rely on American Trucking Associations, Inc. v. City of Los Angeles ,
The Court observes that, although Congress appropriated $ 1.571 billion for physical barriers and associated technology along the Southwest border for fiscal year 2018, counsel for the House has represented to the Court that the Administration has stated as recently as April 30, 2019 that CBP represents it has only constructed 1.7 miles of fencing with that funding. See Dkt. No. 161; see also Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a)