EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS, Plаintiffs—Appellees Cross-Appellants, versus DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY; MARK ESPER, SECRETARY, DEPARTMENT OF DEFENSE, IN HIS OFFICIAL CAPACITY; CHAD F. WOLF, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY; DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, IN HIS OFFICIAL CAPACITY; STEVEN T. MNUCHIN, SECRETARY, U.S. DEPARTMENT OF TREASURY, IN HIS OFFICIAL CAPACITY; TODD T. SEMONITE, IN HIS OFFICIAL CAPACITY AS COMMANDING GENERAL UNITED STATES ARMY CORPS OF ENGINEERS, Defendants—Appellants Cross-Appellees.
No. 19-51144
United States Court of Appeals for the Fifth Circuit
December 4, 2020
Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CV-66
El Paso County, Texas and the Border Network for Human Rights (BNHR), a community organization headquartered in El Paso, sued the government defendants, challenging their use of funds allocated for
I
In early 2019, President Trump requested that Congress appropriate $5.7 billion in fiscal year 2019 for the construction of approximately 234 miles of border wall. A month later, Congress passed the Consolidated Appropriations Act, 2019 (CAA).1
None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President‘s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.3
President Trump promptly signed the CAA into law.4 The same day, President Trump published a factsheet announcing a plan to divert funds that Congress had appropriated for other purposes to build the border wall.5 The announcement stated that funds, including $2.5 billion of Department of Defense (DoD) funds originally appropriated for support for counterdrug activities under
Also on the same day, President Trump issued a proclamation declaring a national emergency on the southern border.8 The proclamation stated that “[t]he southern border is a major entry point for criminals, gang members, and illicit narcotics.”9 Then, citing the “long-standing” “problem of large-scаle unlawful migration through the southern border” and the “sharp increases in the number of family units entering and seeking entry to the United States[,] and an inability to provide detention space for many of these aliens while their removal proceedings are pending,” the proclamation invoked the National Emergencies Act to “declare that a national emergency exists at the southern border of the United States.”10 The stated purpose for declaring a national emergency was “[t]o provide additional authority to the Department of Defense to support the Federal Government‘s response” and to make “the construction authority provided in section 2808” “available . . . to the Secretary of Defense.”11
Later that month, the Department of Homeland Security formally requested that DoD assist with constructing or replacing over 200 miles of border infrastructure pursuant to DoD‘s
DoD later announced plans to spend $3.6 billion on eleven military construction projects pursuant to
El Paso County and BNHR filed a suit challenging both the President‘s proclamation and the Govеrnment‘s
II
We review questions of standing de novo.17 To have Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”18 “Since they are not mere
A
We conclude that neither El Paso County nor BNHR has standing to challenge the Government‘s
1
El Paso County asserts two distinct grounds for standing to challenge the Government‘s
a
We first consider El Paso County‘s argument that it has suffered an economic injury due to thе cancellation of the Fort Bliss project. “[E]conomic injury is a quintessential injury upon which to base standing.”22 Unquestionably, Fort Bliss has a substantial impact on the economy of El Paso County. The military base “create[s] nearly 62,000 jobs with more than $4 billion in compensation to area households” and “affects the real estate market and every other aspect of the economy.” Due to the importance of the military base, El Paso County argues that diverting funds away from Fort Bliss will inflict harm to the county‘s economy. Yet, as a political subdivision of the state, El Paso County may not assert the economic injuries of its citizens on their behalf as parens patriae.23 Rather, to establish Article III standing, El Paso County must show that the county itself has suffered an injury.
El Paso County is not directly harmed by the cancellation of the Fort Bliss project—no part of the $20 million would be paid to the county itself. Instead, El Paso County asserts that the cancellation of the project will reduce the county‘s tax revenues, because a $20 million construction project within the county would necessarily generate taxes through workers staying at hotels, buying supplies, and spending money at local establishments. In addition, El Paso County argues that cancellation of
We conclude that a county‘s loss of general tax revenues as an indirect result of federal policy is not a cognizable injury in fact. El Paso County‘s proposed theory of standing is inconsistent with the Supreme Court‘s reasoning in Wyoming v. Oklahoma.24 In that case, Wyoming challenged an Oklahoma state law that required Oklahoma utility companies to burn at least 10% Oklahoma-mined coal.25 Prior to the law‘s enactment, the Oklahoma utilities purchased virtually all of their coal from Wyoming sources.26 Wyoming collected severance tax on all coal extracted from the state.27 The act‘s passage caused Wyoming to lose hundreds of thousands of dollars of
severance tax revenue.28 The Supreme Court held that Wyoming had standing to sue because the Oklahoma law caused Wyoming “a direct injury in the form of a loss of specific tаx revenues.”29 The Court distinguished Wyoming‘s loss of the specific severance tax with two Court of Appeals decisions that denied standing when “actions taken by United States Government agencies had injured a State‘s economy and thereby caused a decline in general tax revenues.”30
Both cases that the Court distinguished in Wyoming involved claims by states that the federal government granted their citizens insufficient disaster relief funds.31 In one of the cases, Pennsylvania v. Kleppe, Pennsylvania argued that the insufficient disaster relief funds would lead to a reduction of the state‘s tax revenues.32 The court acknowledged that a loss of tax revenues “embodies a comprehensible harm to the economic interests of the state government.”33 Nevertheless, the court held that Pennsylvania did not have standing.34 The court compared the state‘s indirect loss of general tax revenues with the “cases imposing very strict limits on taxpayer standing.”35 The reality of federal expenditure is that “virtually all federal policies” will have “unavoidable economic repercussions.”36 Consequently,
the court held that to have standing, a state must show a “fairly direct link between the state‘s status as a collector and recipient of revenues and the . . . action being challenged.”37 Otherwise, a state, county, or municipality could have standing even if “diminution of tax receipts is largely an incidental result of the challenged action.”38 The Eighth and Tenth
El Paso County does not allege that it will lose specific tax revenues due to the cancellation of the Fort Bliss project. Instead, El Paso County asserts that the economy of the county at large will be harmed, resulting in a reduction in general tax revenues for the county. To distinguish Wyoming, El Paso County argues that it is easier for a county, rather than a state, to establish that a federal policy has caused it economic harm because counties have smaller economies. That argument fails. The distinction identified in Wyoming and applied in other cases does not turn on the size of the economy at issue. Rather, the cases acknowledge that federal policies will inevitably have an economic impact on local governments but require more than an incidental economic impact to establish a cognizable injury.40 A direct link, such as the loss of a specific tax revenue, is necessary to demonstrate
standing.41 “[H]оlding otherwise might spark a waive [sic] of unwarranted litigation against the federal government.”42
We are aware that our decision conflicts with the Ninth Circuit‘s recent holding in Sierra Club v. Trump.43 That case involved a parallel challenge to the Government‘s use of
We do not agree with the holding in Sierra Club with regard to economic injury and decline to follow it. The states in Sierra Club did not contend that they would lose specific tax revenues due to the redirection of
federal funds. Instead, the states alleged that the cancellation of military construction projects would reduce economic activity in their respective states and therefore cause the loss of general tax revenues.49 This is the exact injury that the Supreme Court reasoned was inadequate for standing in Wyoming.50
Even if El Paso County‘s alleged economic injury were cognizable, the county fails to demonstrate that the injury is redressable by a favorable decision in this case. To establish redressability, a plaintiff must show “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.”56 For El Paso County to receive the tax revenues it allegedly lost, the Government would have to proceed with the $20 million Fort Bliss project. Yet, enjoining the Government from spending the diverted funds on border wall construction does not necessarily result in the Government‘s use of those funds on the Fort Bliss project. Congress did not directly appropriate $20 million for the Fort Bliss project. Instead, funds for a defense access roads project are sourced from a lump-sum appropriation for the construction of defense access roads generally.57 “The allocation of funds from a lump-sum appropriation is . . . traditionally regarded as committed to agency discretion.”58 Standing is not inherently precluded when it is based on the discretionary choice of a third-party, but “it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.”59 El Paso County has not alleged any facts demonstrating that it is likely that the DoD would exercise its discretion to go forward with the Fort Bliss project if the Government were enjoined from spending the diverted funds on border wall construction. Standing must exist at all stages of the litigation. The DoD transferred
September 2019, during the 2019 budget cycle. At the time the district court granted summary judgment in favor of the plaintiffs and issued a permanent injunction, in November and December 2019, respectively, the federal government had entered a new budget cycle. Without additional facts, it is speculative as to whether the Fort Bliss project would proceed if the courts were to conclude that the transfer of
In so holding, we reiterate that we decline to follow the Ninth Circuit‘s approach to standing in Sierra Club. In that case, the Ninth Circuit concluded that the states’ alleged tax-loss injury was redressable, because “[a] favorable judicial decision barring Section 2808 construction would prevent the military construction funds at issue from being transferred from projects within the States to border wall construction projects, thereby preventing the alleged injuries.”60 The Ninth Circuit did not address whether the states met their burden of establishing that, were the transfer of funds prevented, the Government would proceed with the cancelled military construction projects.
b
Alternatively, El Paso County contends that it has standing to challenge the
creates‘—which in turn will cause ‘drop-off’ in the County‘s ‘$4 million in tax revenue based on tourism,‘” and that “the County is ‘harmed by [its] unwanted association’ with crime, construction, and militarization.” We will assume, without deciding, that these conclusory assertions, if supported by an adequate evidentiary foundation, would suffice to state an injury to El Paso County‘s reputation.
The plaintiffs must demonstrate standing for each claim and each form of relief they seek.61 Accordingly, to have standing to challenge the
The President‘s proclamation and DoD‘s redirection of funds under
The dissenting opinion asserts that “the fear of investors and tourists to do business with a county that they expect will suffer the negative effects of massive nearby construction and that they perceive to be associated with a
project reflecting intolerant values may be causally linked to the
El Paso County fails to demonstrate redressability. An order granting relief against the
2
Next, we consider whether BNHR has standing to challenge the Government‘s
individuals.”65 BNHR contends that it has standing because the organization was forced to divert time and resources to help its members deal with the harmful effects of border wall construction. An organization suffers an injury in fact if a defendant‘s actions “perceptibly impair[]” the organization‘s activities and consequently drain the organization‘s resources.66 However, an organization does not automatically suffer a cognizable injury in fact by diverting resources in response to a defendant‘s conduct. For example, “[t]he mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart
BNHR‘s evidence is insufficient to establish that the border wall construction “perceptibly impaired” the organization‘s mission by forcing it to divert resources. The organization‘s mission is to “to organize border communities through human rights education” and “mobilize [its] members to advocate for positive change in policies . . . that affect . . the immigrant
community.” BNHR argues that the President‘s proclamation and the subsequent transfer of funds for border wall construction under
As an initial matter, we reiterate that any alleged injury caused by the President‘s language in the proclamation is not traceable to the subsequent
BNHR‘s single vague, conclusory assertion that the organization had to divert resources is insufficient to establish that the
ambit of its normal operations—activities that would not satisfy the requirements of standing. Further, BNHR‘s declaration fails to link the concern over increased noise and traffic with any specific
B
Last, we consider whether El Paso County or BNHR has standing to challenge the Government‘s
To demonstrate that it has standing to challenge the Government‘s
For the same reasons identified above, we reject El Paso County‘s general tax-loss theory of economic standing. A county may not base an injury in fact on the loss of general tax revenues as an indirect result of federal expenditure. Moreover, the evidence is conclusory and speculative.
El Paso County cites decisions from other circuits in which cities were found to have standing based on alleged environmental injuries.71 In City of Sausalito, a city sought to enjoin the National Parks Service from implementing plans to develop Fort Baker, a nearby former military base, alleging violations of environmental and conservation statutes.72 We disagree with the Ninth Circuit‘s analysis in City of Sausalito regarding tax revenue, but in any event, El Paso County has not alleged the types of environmental injuries that the city asserted in that case. In City of Olmsted Falls, a city located two miles from the Cleveland, Ohio airport objected to the Federal Aviation Administration‘s approval of certain changes to the airport‘s runways and operations.73 The D.C. Circuit held that to establish standing to bring a claim under an environmental statute, the city “must allege an injury related to an environmental interest—geographic proximity
might be necessary to show such an injury, but it is not sufficient.74 The court concluded that [a]lthough it is a close question, the city had alleged harm to its own economic interests based on the environmental impacts of the approved project.75 In the present case, El
The dissenting opinion relies on Walker v. City of Mesquite, 169 F.3d 973 (5th Cir. 1999),77 in addition to City of Sausalito and City of Olmsted Falls, in arguing that El Paso County has standing to challenge the
The dissenting opinion asserts that damage to El Paso County s reputation provides the requisite standing.81 We have discussed reputational standing above in conjunction with the
BNHR argues that it has standing to challenge the Government s
* * *
Because El Paso County and BNHR do not have stаnding to challenge the Government s
JAMES L. DENNIS, Circuit Judge, dissenting:
In the final days of 2018, an impasse over the White House s insistence that Congress grant the Department of Homeland Security $5.7 billion to construct a wall at the nation s southern border led to the longest government shutdown in American history. The shutdown concluded when the President signed the 2019 Consolidated Appropriations Act, which afforded only $1.375 billion to build pedestrian fencing along a specific small portion of
The Acting Secretary of Defense ultimately approved two series of border-wall construction projects that relied on funds that had not been originally appropriated for that purpose. The first includes El Paso Project #1, a forty-six-mile stretch of wall beginning about fifteen miles from downtown El Paso. According to affidavits from El Paso County officials, tourists and investors have already declined to spend money in the county due to its unwanted association with the construction, citing both their distaste for the politically controversial undertaking and fears over the practical consequences of doing business in close proximity to a massive construction project. The officials aver that the loss of this outside money will cause a decline in the county s tax revenue. The second set of projects repurposed funds that had been committed to a $20-million defense access road project that, but for the redirection, would have been constructed at Fort Bliss within El Paso County. The El Paso County officials state that the cancellation of the access road project will likewise result in a significant decline in the county s tax revenue.
The majority today holds that the injuries El Paso County suffered and continues to endure as a result of the border wall construction projects are insufficient to support Article III standing. But the precedents of this and other courts firmly establish that, when a plaintiff suffers identifiable, material injuries as a result of a specific government construction project undertaken in the plaintiff s immediate vicinity injuries that are qualitatively different from the generalized harm that anyone might suffer simply as a result of the project s attenuated economic ripple effects those injuries are concrete and particularized enough to satisfy standing. Further, the cancellation of a specific government project and the economic benefits that would flow from it is wholly distinguishable from the generalized loss of tax revenue discussed in the cases upon which the majority relies. Far from being the type of nebulous injury that any municipality might assert as a result of changes in government policy, the cancellation of the Fort Bliss access roads project injured El Paso in a discrete, tangible way that is distinct from any injury suffered by other localities. Indeed, one is hard pressed to imagine any plaintiff that would be capable of challenging the border-wall construction and the funding transfers that facilitated it under the majority s unduly onerous standard, which is unfortunate given that multiple courts have concluded they are unlawful on several different grounds.
I, likewise, would conclude that the 2019 Consolidated Appropriation Act clearly prohibited the redirection of funds that underpins the border-wall construction and that the cited statutory authority for the transfers did not authorize them in any event. I therefore cannot join the majority s decision and must respectfully dissent.
I. Background and Procedural History
A. Border Wall Negotiations Between the President and Congress
During the run-up to the 2016 presidential election, then-candidate Donald Trump
For fiscal year 2017, the President requested that Congress appropriate $999 million for construction of the first installment of the border wall, but Congress granted him only $341.2 million to replacing preexisting border fencing. See Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. 135, 434. For fiscal year 2018, the President requested $2.6 billion for border wall construction, but Congress appropriated only $1.571 billion for border security technology and fencing, much of which was earmarked for building barriers only in specific locations or for replacing preexisting fencing. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348, 616. The 2018 appropriations act also established a consultation process under which the Secretary of Homeland Security was tasked with presenting a plan to Congress for improving border security that would include the details of how any proposed border barriers would be built, the estimated yearly cost of construction through fiscal year 2027, and a process for consulting state and local authorities regarding the construction process and the use of eminent domain to acquire the land on which the wall was to be built.
In his proposed budget for fiscal year 2019, the President initially requested $1.6 billion to construct approximately sixty-five miles of border wall. However, during a meeting with Congressional Democratic leadership in the Oval Office shortly after the 2018 mid-term election, the President instead demanded that Congress appropriate $5 billion to the project. Congress refused, and the impasse in budget negotiations resulted in a government shutdown. Shortly after the shutdown began, the President sent a letter to Congress, this time calling for $5.7 billion for the construction of approximately 234 miles of border wall. As the shutdown wore on, eventually breaking the record for the longest in U.S. history, the President publicly stated that he was considering declaring a national emergency in order to build
Negotiations eventually led to the enactment of a stop-gap funding bill, and then, on February 14, 2019, Congress passed the Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 (the CAA ). The CAA appropriated only $1.375 billion to the Department of Homeland Security ( DHS ) for the construction of pedestrian fencing solely within the Rio Grande Valley Sector,
None of the funds made available in this or any other appropriations Act may
be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.
The following day, the President signed the CAA into law, permanently ending the government shutdown.
B. The National Emergency Proclamation
The same day that the President signed the CAA, the White House published a factsheet entitled President Donald J. Trump s Border Security Victory. The document announced a plan to reprogram specific funds to build the border wall once a national emergency is declared. As relevant here, the factsheet stated that [u]p to $2.5 billion would be available under the Department of Defense funds transferred for Support for Counterdrug Activities (
On the same day, the President also issued a proclamation entitled Declaring a National Emergency Concerning the Southern Border of the United States. 84 Fed. Reg. 4949 (Feb. 15, 2019) (the Emergency Proclamation ). The Emergency Proclamation stated that the southern border was a major entry point for criminals, gang members, and illicit narcotics. Id. Then, citing the long-standing problem of large-scale unlawful migration through the southern border and the sharp increases in the number of family units entering and seeking entry to the United States, the Emergency Proclamation invoked the National Emergency Act ( NEA ) to declare that a national emergency exists at the southern border of the United States. Id. It stated that the purpose of declaring the emergency was [t]o provide additional authority to the Department of Defеnse to support the Federal Government s response and to make the construction authority provided in
During a press conference announcing the Emergency Proclamation, President Trump indicated that the measure was intended to circumvent the limited appropriations Congress had made for construction of a border wall, stating
Look, I went through Congress. I made a deal. I got almost $1.4 billion when I wasn t supposed to get one dollar not one dollar. He s not going to get one dollar. Well, I got $1.4 billion. But I m not happy with it. . . . . [O]n the wall, they skimped. So I did I was successful, in that sense, but I want to do it faster. I could do the wall over a longer period of time. I didn t need to do this. But I d rather do it much faster.
Five days later, on February 20, 2019, El Paso County, Texas and the Border Network for Human Rights ( BNHR ) (collectively, the Plaintiffs ) filed a complaint in the U.S. District Court for the Western District of Texas, asserting both a claim under the Administrative Procedures Act ( APA ) and a series of equitable claims to enjoin the construction on various grounds and initiating the case that gives rise to this appeal.
C. The Redirection of the § 284 Funds and the Sierra Club Case
Shortly after the complaint was filed, on February 25, 2019, DHS formally requested
Because Congress had appropriated only $517.2 million to DoD for counter-narcotics support, which was well short of the $2.5 billion called for in the President s factsheet, DoD transferred an eventual total of $2.5 billion from other appropriation accounts to its
Two environmental groups then filed suit against many of the same Government officials that are defendants in the present case in the U.S. District Court for the Northern District оf California. Asserting that they had environmental interests that would be damaged by unlawful construction, they argued that DoD s redirection of funds to its
The defendants appealed to the Ninth Circuit and moved for an emergency stay of the district court s injunction pending appeal. See Id. A panel of the Ninth Circuit denied the motion for a stay in a 2-1 decision. Id. The panel majority determined, inter alia, that the environmental groups had either a cause of action under the Administrative Procedures Act ( APA ) or an implied equitable cause of action to challenge the Government s violation of the Appropriations Clause of the Constitution. Id. at 694-700. The majority expressed doubt that the zone of interest requirement that is, the requirement that a plaintiff s asserted interest must be the interest that a law is intended to protect in order for the plaintiff to have a cause of action to enforce that law applied to the environmental groups claims. Id. at 700. But if the requirement did apply, the majority reasoned, the appropriate focus would not be
Judge N. R. Smith dissented, arguing that the environmental groups claim was properly evaluated under the APA, for which the zone of interest requirement unquestionably applied. Id. at 713 (Smith,
The defendants then applied to the Supreme Court for an emergency stay pending appeal. In a brief unsigned order, a majority of the Court appeared to agree with Judge Smith s dissent, stating that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary s compliance with
D. The Redirection of the § 2808 Funds
On September 3, 2019, the Acting Secretary of Defense issued a memorandum to the various secretaries of the military departments entitled Guidance for Undertaking Military Construction Projects Pursuant to
Because
E. District Court Proceedings
On April 25, 2019, the Plaintiffs here amended their complaint to include allegations related to the Acting Secretary of Defense s approval of the use of
On November 11, 2019, the district court issued a memorandum opinion granting in
The court then determined that the Plaintiffs had standing with respect to the
On December 10, 2019, the district court issued a second memorandum opinion granting the Plaintiffs a declaratory judgment stating that the Emergency Proclamation was unlawful to the extent it authorized the agency-head Government defendants to use
II. Standard of Review
This court reviews legal questions, including those of constitutional and statutory interpretation, de novo. Willy v. Admin. Review Bd., 423 F.3d 483, 490 (5th Cir. 2005); U.S. v. Lauderdale Cnty., 914 F.3d 960, 964 (5th Cir. 2019). Thus, we examine de novo whether a plaintiff possesses standing and a valid cause of action. N.A.A.C.P. v. City of Kyle, 626 F.3d 233, 236 (5th Cir. 2010). Similarly, whether an agency has acted in excess of statutory authority is reviewable de novo, subject to the familiar Chevron framework where appropriate. See City of Arlington v. F.C.C., 569 U.S. 290, 296 (2013) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 43 (1984)). And when reviewing these questions, the court may affirm summary judgment on any ground supported by the record, even if it is different from that relied on by the district court. Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272, 275-76 (5th Cir. 2014). By contrast, a district cоurt s decisions regarding equitable remedies, including whether and to what extent to grant an injunction, are reviewable only for abuse of discretion. See Moses v. Wash. Parish Sch. Bd., 379 F.3d 319, 327 (5th Cir. 2004).
III. Discussion
A. The Plaintiffs Right to Sue
This case implicates two distinct but often confused threshold issues: standing and the existence of a cause of action. See Davis v. Passman, 442 U.S. 228, 239 n. 18 (1979) (contrasting
First, standing. The Constitution limits [t]he judicial Power to cases and controversies,
In other words, standing is the question of whether the defendant s alleged conduct injured the plaintiff in a way that the court could theoretically remedy, regardless of whether the defendant s alleged conduct was actually unlawful and actually entitles the plaintiff to relief. When a plaintiff has not alleged the requisite injury, federal courts lack the power to hear the case because [s]tanding is jurisdictional. LeTourneau Lifelike Orthotics & Prosthetics, Inc. v. Wal-Mart Stores, Inc., 298 F.3d 348, 351 (5th Cir. 2002).
But not every injury that satisfies standing entitles a plaintiff to relief from the courts. [T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute and it in no way depends on the merits of the plaintiff s contention that particular conduct was illegal or entitles the plaintiff to a remedy. Warth v. Seldin, 422 U.S. 490, 498 (1975). This separate question whether a plaintiff s alleged injury would actually entitle the plaintiff to a judicial remedy if proven is the question of whether a cause of action exists.
Put another way, a cause of action is a legal right to relief from the courts. See Passman, 442 U.S. at 239 n. 18. In many instances, whether a plaintiff has a cause of action will depend on whether the legislature has created such a right to relief, although a cause of action can also arise from the common law (such as torts or a breach of contract claim) or in equity (such as an inferred right to seek an equitable injunction to prevent injury from unlawful conduct). See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). A plaintiff can have standing but lack a cause of action when, for example, the plaintiff is injured by a defendant s conduct that is totally lawful, such as when a defendant company benefits from a strategic decision by taking business from its competition. See Cooper v. Texas Alcoholic Beverage Comm n, 820 F.3d 730, 738 (5th Cir. 2016) ([N]umerous courts have upheld the standing of competitors to challenge official actions that change the amount of competition in an economic actor s market. ).
However, a plaintiff may also lack a cause of action even when actually injured by a defendant s unlawful conduct. This is because one aspect of the cause of
The Supreme Court has held that, in the context of claims based on federal statutes, determining whether a plaintiff has a cause of action generally requires looking to whether the interest that the plaintiff asserts the defendant s unlawful conduct harmed is among the zone of interests the federal statute was intended to protect. Lexmark Int l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26 (2014). This requirement is based on the inference that, when Congress creates a cause of actions (such as in the APA), it does not intend to allow individuals to use it to vindicate interests [that] are so marginally related to or inconsistent with the purposes implicit in the statute that was allegedly violated. Id. at 130 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)). Although many courts have muddied the waters by referring to this inquiry as prudential standing or statutory standing, it is a separate and distinct question from whether a defendant s alleged conduct caused the plaintiff redressable injury the focus of the standing inquiry. Id. at 127 n. 3. The distinction is particularly important because, unlike standing, the existence of a cause of action is not a jurisdictional requirement and it instead goes to the merits of a claim. Id.
With these distinctions in mind, I turn to the current case.
1. Standing
[T]he presence of one party with standing is sufficient to satisfy Article III s case-or-controversy requirement. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Thus, where there are multiple plaintiffs in a suit, an appeals court need determine only that at least one of the plaintiffs has standing with respect to each claim in order to proceed to the merits of that claim. See id. As discussed below, I would hold that El Paso has standing to challenge both the
a. The Redirection of Funds for § 284 Construction
As detailed above, the Acting Secretary of Defense has authorized the use of
Several other circuits have held that municipalities often have standing to assert injuries that result from adjacent government construction. In City of Olmsted Falls v. Federal Aviation Administration, for instance, the D.C. Circuit held that a city had standing based on alleged economic harm it would suffer as a result of environmental damage caused by the Federal Aviation Administration s construction at an airport two miles from the city. 292 F.3d 261, 266-67 (D.C. Cir. 2002). Similarly, in City of Sausalito v. O Neill, the Ninth Circuit held that a city had standing to challenge military construction at a nearby fort based on a declaration from a city official asserting that the construction was likely to result in, inter alia, congested streets, lost property and sales tax revenue due to impaired vehicular movement and commerce rendering [the city] less attractive to business, and damage to the city s tourism industry because added traffic congestion and crowded streets will destroy the City s quiet, beauty, serenity and quaint and historic village character and attributes. 386 F.3d 1198 (9th Cir. 2004). The Ninth Circuit determined that the city had valid, cognizable interests in preventing physical damage to its streets and harm to its municipal management and public safety functions, as well as in its aesthetics, tax base, and natural resources. Id. at 1198-99. All of these would potentially be
harmed by the nearby construction, the Ninth Circuit held, and the city therefore satisfied the constitutional requirements of standing.
Although this court has not addressed the exact issue of municipal standing as a result of nearby government construction, it has found that standing was satisfied when considering the issue with respect to individual plaintiffs. In Walker v. City of Mesquite, 169 F.3d 973, 980 (5th Cir. 1999), homeowners brought an action seeking to enjoin the government from constructing two new public housing projects adjacent to their predominantly white neighborhood because the site selection had been racially motivated as a result of a previous remedial court order. Although this court found that the disparate treatment on the basis of race was sufficient injury in itself to support standing, it held in the alternative that standing was satisfied because the homeowners had alleged “that constructing two new 40-unit public housing projects adjacent to their neighborhoods will cause a decline in their property values and other problems involving crime, traffic and diminished aesthetic values.”1 Id.
Together, these cases stand for the basic proposition that a party in close proximity
One might question the veracity of the submitted declarations and whether the nearby pending construction has actually resulted in a diminishment of investment and tourism and damaged the county‘s reputation for diversity and inclusivity. However, standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. The court is generally not permitted to weigh credibility at the summary judgment stage, and this means that assertions in declarations in support of standing should be treated as true when they are uncontroverted. See id.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Because the Plaintiffs submitted sufficient evidence that they were injured, the burden shifted to the Government to introduce evidence creating a genuine issue of material fact on the matter. See Int‘l Shortstop, Inc. v. Rally‘s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991). And the Government offered no evidence that El Paso County‘s economy and tax base have not and will not been harmed by the
The Government argued that El Paso County‘s contentions are speculative and based on the independent actions of third parties. First, Plaintiffs’ declarations make clear that they have already endured harm, and thus their injury is not speculative. Second, “standing is not [inherently] precluded” when it is based on the choices of third-parties; rather, the plaintiff must simply “adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Lujan, 504 U.S. at 562. Where an injury results as a “predictable effect of Government action on the decisions of third parties,” standing is satisfied. Dep‘t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (holding state had standing to challenge inclusion of citizenship question on census that would predictably discourage third-party noncitizens from responding, resulting in loss of state funding, despite nonresponse being unlawful and fears being irrational in light of confidentiality law). Here, the county officials declared that they encountered tourists and investors who expressly linked their disinclination to spend money in El Paso County to the pending construction—an aversion that
Furthermore, “the injury in fact requirement under Article III is qualitative, not quantitative, in nature,” and it “need not measure more than an identifiable trifle.” Ass‘n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 357-58 (5th Cir. 1999). Thus, even if only one individual has chosen not to do business with El Paso County as a direct result of the construction, it is sufficient to show an actual or imminent injury in fact with a causal linkage to the construction. Here, the Plaintiffs’ declarations—which, again, are uncontroverted—aver that the county has indeed suffered a loss in business attributable to the construction, satisfying standing‘s injury-in-fact component.
The Government and the majority rely heavily on dictum in Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992), to conclude that El Paso‘s asserted injury is too nebulous to satisfy standing. In Wyoming, the state of Wyoming sued Oklahoma to challenge Oklahoma legislation that required local powerplants to burn at least 10% Oklahoma-mined coal. Id. The Court held that standing was satisfied because the law resulted in a decrease in the sale of Wyoming-mined coal, which in turn deprived Wyoming of severance tax revenues. Id. at 447-49. In so holding, the court noted that some Courts of Appeals had denied standing when states claimed that actions taken by the federal government injured the state‘s economy and caused a decline in general tax revenues, but it held that those cases were not analogous because Wyoming had alleged “a direct injury in the form of a loss of specific tax revenues.” 502 U.S. at 448.
In addition to the Court‘s statement about a decline in general tax revenues being dictum—indeed, dictum that does not even clearly endorse the principle the Government and the majority cite it for—it is inapposite here. The two cases the Court noted in Wyoming were Pennsylvania v. Kleppe, 533 F.2d 668, 671 (D.C. Cir. 1976) and Iowa v. Block, 771 F.2d 347, 348 (8th Cir. 1985). Both cases involved claims by states that their citizens were entitled to greater disaster relief than the federal government had afforded to them. See Kleppe, 533 F.2d at 671 (challenging “class B” designation by Small Business Administration following hurricane as providing inadequate recovery loans); Block, 771 F.2d at 353 (challenging Agriculture Secretary‘s failure to provide subsidy relief to farmers affected by drought) The courts found that the states were essentially bringing actions on behalf of their citizens, and any allegation of harm to the states themselves was “sketchy and uncertain” and might have included some general loss in tax revenue as a result of the state‘s citizens not receiving a greater benefit. Kleppe, 533 F.2d at 671 n.14; Block, 771 F.2d at 353. There is no indication the states even alleged that the citizens would spend the additional relief fund within the states. Notably, the states’ asserted injuries were the same injuries that any state might suffer when the federal government implements federal policy, for virtually all federal laws have some incidental effect on the economy.
Even assuming the holdings of Kleppe and Block were endorsed by the Supreme Court in Wyoming, El Paso County does not make vague allegations that the construction will alter economic patterns in some unspecified way and that its general tax revenues will fall as a result. Rather, El Paso County demonstrated that tourists and investors have and will continue to decline to do business in the county because of its extremely close proximity to a
b. The Redirection of Funds for § 2808 Construction
For many of the same reasons that El Paso has standing to challenge the construction undertaken with the
However, El Paso County has standing to challenge the redirection of funds for
Fort Bliss is the nation‘s second-largest Army base, and it houses about 70,000 soldiers and family members. U.S. Army, Fort Bliss, https://home.army.mil/bliss/index.php/my-fort. According to studies cited in the declaration filed by a top El Paso County official, Fort Bliss contributes $23.13 billion to the Texas economy and $5.9 billion specifically to El Paso County. Its presence in El Paso County creates 62,000 additional jobs, resulting in $4 billion in compensation to area households. Thus, county officials consider Fort Bliss to be “the lifeblood of the El Paso economy,” with the financial health of the base affecting the “real estate market and every other aspect of the economy in El Paso.”
Courts have long recognized that government action that results in the cancellation of a government benefit that a state or municipality expects to receive gives rise to an injury in fact sufficient to satisfy standing. In Clinton v. City of New York, 524 U.S. 417, 429 (1998), for instance, the Supreme Court found that New York City had standing to challenge the President‘s use of the line-item veto to veto a provision that would have nullified a debt New York State owed to the federal government. Because New York State was likely to assess New York City for a portion of the debt owed, the court found that the cancellation of the economic benefit constituted an injury-in-fact to the city. Id. at 430; see also New York, 139 S. Ct. at 2566 (holding state would have standing to challenge census citizenship question that would discourage response and lead to loss of federal benefits); Texas v. United States, 945 F.3d 355, 376 (5th Cir. 2019) (holding that states that would lose federal funding as a result of district court‘s order
The Government and majority argue that El Paso County was not directly entitled to the funds that would be spent on the Fort Bliss access road project, and any allegation that the loss of the project will result in decreased tax funds is a generalized grievance that cannot support standing under Wyoming, 502 U.S. at 448.3 But, as discussed above, the Court‘s note in Wyoming that some Courts of Appeals had found generalized losses of tax revenue insufficient to support standing was dictum that did not expressly endorse the decisions it described. See supra, § III.A.1.a. And, even assuming that those decisions were correct, they are inapposite here because generalized harm to the economy is not analogous to the loss of a specific identified project and the benefits that would flow from it. It is axiomatic that a $20 million construction project will require a range of local spending, including the procurement of local materials and labor. See Carpenters Indus.
Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017) (Kavanaugh, J., concurring) (noting that “[c]ommon sense and basic economics” can be useful tools when “performing that inherently imprecise task of predicting or speculating about causal effects” for purposes of evaluating standing). The county would have been entitled to collect income and sales tax on these expenditures, and it is the “direct injury in the form of a loss of [these] specific tax revenue[s]” that the county challenges. Wyoming, 502 U.S. at 448. Thus, even if the loss of the plethora of beneficial secondary economic effects from the project—including increases in property values and the creation of jobs—is too generalized or speculative to constitute an injury in fact, the loss of the specific tax revenue from the planned construction is sufficient. And, should the county deem the access road necessary for its own purposes, it will now be forced to finance the project itself.
Indeed, the Ninth Circuit recently held as much when considering this exact issue in a decision the majority acknowledges conflicts with its own. In the latest chapter in the Sierra Club case, the court determined that, in a separate challenge brought by a number of states that was consolidated with the appeal, “the States ha[d] alleged analogous” injuries to those the Supreme Court found sufficient in Wyoming because they were “direct injuries in the form of lost tax revenues resulting from the cancellation of specific military construction projects.” Sierra Club v. Trump (“Sierra Club IV“), 977 F.3d 853, 871 (9th Cir. 2020). The court expressly rejected the comparison to Kleppe on which the majority today relies, see id. at 870-71, and not even the dissent in that case adopted this unsupported reasoning,
The Government also challenges the fact that the declaration filed by the Plaintiffs was made before the Acting Secretary of Defense had conclusively decided to defund the Fort Bliss access road project. But the Fort Bliss access road project had already been identified for likely cancellation in order to free up funds for the
The majority also argues that El Paso has not shown redressability for this injury because DoD would maintain discretion not to build the Fort Bliss access road even if the
Here, the Fort Bliss access road project was already considered to be a needed addition that would greatly benefit the base, and it was only canceled because of the desire to free up funds for border barrier construction. Indeed, the Government does not even describe the decision as a cancellation, but rather a “deferment,” indicating that it still plans to undertake the project someday once funds are available. It is thus substantially likely that the access road would be built if the
Accordingly, El Paso has demonstrated a sufficient injury to establish standing to challenge the
As discussed supra, § III.A.1, in order for a plaintiff to bring an action challenging an agency decision under the APA, the plaintiff‘s asserted injury must arguably be to an interest that falls among the “zone of interests” the allegedly violated law was intended to protect. Lexmark, 572 U.S. at 129 (citing Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)). The test “is not meant to be especially demanding,” Clarke v. Sec. Inds. Assn., 479 U.S. 388, 399 (1987), and it should be applied in light of “Congress‘s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.‘” Match-E-Be-Nash-She-Wish, 567 U.S. at 225 (quoting Clarke, 479 U.S. at 399). Thus, the Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.” Id.
As an initial matter, the Plaintiffs dispute whether the “zone of interest” test should apply to all of their claims. They contend that Lexmark International, Inc. v. Static Control Components, 572 U.S. 118, 127 (2014), made clear that the requirement is applicable to only “legislatively conferred cause[s] of action.” Because they also assert an implied equitable cause of action to enjoin violations of law by federal officials, they contend that the zone-of-interest inquiry is irrelevant to some of their claims.
It is true that the Supreme Court has long recognized that federal courts “may in some circumstances grant injunctive relief against [federal official] who are violating, or planning to violate, federal law.” Armstrong, 575 U.S. at 327; see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (holding that the APA “does not repeal the review of ultra vires actions recognized lоng before“). But “[t]he power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.” Armstrong, 575 U.S. at 327. When Congress has excluded or restricted private enforcement of a statute, plaintiffs “cannot, by invoking our equitable powers, circumvent Congress‘s” restrictions. Id. at 328. This rule applies here because Congress placed various limitations--including the zone-of-interests requirement--on the judicial review provided for in the APA, which a plaintiff cannot avoid simply by bringing an equitable action to challenge a final agency decision alongside or instead of an APA claim. See
This is confirmed by the Supreme Court‘s order in Sierra Club II. There, the plaintiffs had also asserted an equitable right of action to which they argued the zone-of-interests test did not apply. 929 F.3d at 700-01. A majority of the Ninth Circuit appeared to tentatively agree, stating that they were “skeptical that there could be a zone of interests requirement
a. El Paso County at Minimum Has a Cause of Action to Challenge the Transfer of the § 284 Funds as Violative of the CAA.
Generally, when a plaintiff brings an APA claim for a violation of another source of law, the focus of the zone-of-interest inquiry is not the APA itself, but rather “the zone of interests to be protected or regulated by the statute that [the plaintiff] says was violated.” Match-E-Be-Nash-She-Wish, 567 U.S. at 224 (internal quotations and citations omitted); accord Bennett v. Spear, 520 U.S. 154, 175 (1997) (stating the focus should be on the “substantive provisions . . . [that] serve as the gravamen of thе complaint.“). With regard to the
The Plaintiffs argue that these provisions—like all “structural principles secured by the separation of powers“—are intended to “protect the individual.” Bond v. U.S., 564 U.S. 211, 222 (2011). And because El Paso County and BNHR are composed of individuals who have been injured by the Government‘s alleged violation of statutes that were intended to preserve the separation of powers, the Plaintiffs argue, they are within the zone of interests the statutes were intended to protect. They rely significantly on Bond v. U.S., in which the Supreme Court held that an individual citizen fell within the zone of interests protected by the division of power between the states and federal government, and thus could raise as a defense in a federal prosecution the argument that the allegedly violated law was unconstitutional because it was enacted pursuant to a power that is rightly reserved to the states. Id. at 222-23.
At first blush, the Plaintiff‘s argument has significant appeal. Indeed, in Bond itself, the Court noted that the same purpose of individual protection that is served by federalism is served by the separation of powers between the branches of the federal government, and it cited numerous cases in which “the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances.” Id. (citing, inter alia, INS v. Chadha, 462 U.S. 919 (1983); and Clinton v. City of New York, 524 U.S. 417, 433-436 (1998)). And this court, sitting en banc, recently interpreted these statements broadly to allow all claims implicating separation of powers violations to go forward when the requirements of standing are met: “A plaintiff with Article III standing can maintain a direct claim against government action that violates the separation of powers. . . . If the constitutional structure of our Government that protects individual liberty is compromised, individuals who
However, at least with respect to the alleged violations of the CAA, El Paso asserts an injury to a more specific interest. As related above, the CAA established a detailed consultation process in which DHS was required to submit a plan for border wall construction to Congress that would include “[a] plan to consult State and local elected officials on the eminent domain and сonstruction process relating to physical barriers.” Pub. L. No. 116-6 at § 229(c), 133 Stat. at 28 (citing Consolidated Appropriations Act, 2018, Pub. L. No. 115-141 § 231(a), 132 Stat. 348, 617). The clear import of the requirement that DHS submit such a plan, viewed in conjunction with the CAA‘s appropriation of funds for border wall construction only in one specific area and Section 739‘s restriction on altering the budget appropriated to a requested project, is that Congress was not prepared to authorize construction of a border wall in other areas without consultation with state and local officials. See Indian River Cnty. v. U.S. DOT, 945 F.3d 515, 530 (D.C. Cir. 2019) (holding that, when applying the zone-of-interests test, courts should not look to the allegedly violated provisions in isolation but also to other provisions bearing an “integral relationship” to the restrictions the plaintiff wishes to enforce); Ctr. for Biological Diversity v. Trump, No. 1:19-CV-00408 (TNM), 2020 WL 1643657, at *20 (D.D.C. Apr. 2, 2020) (explaining that Section 739 bears an integral relationship to all of the funding in the CAA because it “would be meaningless if not paired with other provisions of the CAA,” which “put flesh on § 739‘s bare mandate“). And when viewed in this light, there is a strong argument that Congress intended that the CAA protect the interest of local municipalities in being free from the harmful political and economic effects of nearby border-wall construction—the precise interests El Paso County claims are injured by the Government‘s commencement of
b. El Paso County Also Has a Cause of Action to Challenge the § 2808 Redirection of Funds Because Its Interest in the Canceled Fort Bliss Access Road Project Is Protected by the Statutes it Invokes.
The Plaintiffs argue that the
As discussed above, the dissent in Sierra Club I, which the Supreme Court appeared to endorse with its Sierra Club II order, postulated that the restrictions on redistributing appropriated funds contained in Section 8005 were intended to “protect[] Congress and those who would have been entitled to the funds as originally appropriated.” Sierra Club I, 929 F.3d at 715 (Smith, J., dissenting). The dissent in the Ninth Circuit‘s later decision on the merits in Sierra Club III likewise accepted that a party asserting that it would have been entitled to the funds as originally appropriated would have a cause of action. Sierra Club III, 963 F.3d at 909 (Collins, J., dissenting) (“The assumption that no one will ever be able to sue for any violation of § 8005 seems doubtful[.]” (quoting Sierra Club I, 929 F.3d at 715 (Smith, J., dissenting))); see also California v. Trump, 963 F.3d 926, 961 (9th Cir. 2020) (Collins, J., dissenting) (arguing in companion case to Sierra Club III that states had not established that they were within the Section 8005 zone of interests because they had “made no showing whatsoever that, in the absence of these transfers to the ‘Drug Interdiction and Counter-Drug Activities, Defense’ appropriation, the funds in question would otherwise have been transferred for the direct benefit of” the states). Thus, even the dissent in the various Sierra Club decisions agreed that, at minimum, a party asserting a loss of a benefit that it would have received but for the allegedly unlawful transfer would fall within the zone of interests protected by Section 8005.
The CAA generally, Section 739 of the CAA in particular, and the restrictions contained in
Although El Paso County would not be the direct recipient of the entirety of the $20 million scheduled for use on the Fort Bliss access road, the county would certainly receive some portion of that spending in tax revenues. And, as stated, Congress has made agency action “presumptively reviewable” under the APA such that an injury to any interest that is even “arguably” within the zone of interests protected by a statute will entitle the plaintiff to bring suit. Match-E-Be-Nash-She-Wish, 567 U.S. at 225 (“[T]he benefit of any doubt goes to the plaintiff.“). El Paso County‘s loss of the Fort Bliss access road construction project and the revenues it would generate represents an injury to an interest that the CAA and the restrictions within
B. Statutory Violations
1. The Redirection of the § 284 Funds Violated the CAA.
a. Under the CAA, Congress‘s Appropriation of $1.375 Billion for the Construction of Border Barriers Prеcludes the Use of Other Funds for Border Barrier Construction.
As related above, the CAA appropriated $1.375 billion to DHS for the construction
“[F]rom time immemorial,” courts and the agencies responsible for administering the federal budget have followed the rule that “[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation.” Nevada v. Dep‘t of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (quoting Office of the General Counsel, United States Government Accountability Office (“GAO“), PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-21 (3d ed. 2004) (“RED BOOK”5); 4 Comp. Gen. 476, 476 (1924)). In other words, “[i]f a specific appropriation exists for a particular item, then that appropriation must be used and it is improper to charge the more general appropriation (or any other appropriation) or to use it as a ‘back-up.‘” RED BOOK 3-408. “Otherwise, an agency could evade or exceed congressionally established spending limits.” Id. at 3-408. “The cases illustrating this rule are legion.” Id. at 3-409. For example, as early as 1894, the Comptroller General of the United States informed the Attorney General that “[a] State Department appropriation for ‘publication of consular and commercial reports’ could not be used to purchase books in view of a specific appropriation for ‘books and maps.‘” Id. (quoting 1 Comp. Dec. 126 (1894)).
In finding that, under this rule, Congress‘s appropriation of $1.375 billion to DHS for border wall construction precluded DoD‘s use of its funds to undertake the project, the district court relied on the D.C. Circuit‘s decision in Nevada v. Department of Energy, 400 F.3d at 16. In Nevada, the D.C. Circuit applied the rule to hold that a specific appropriation of $1 million for “Nevada . . . to conduct scientific oversight responsibilities and participate in licensing activities” precluded the use of any of the funds in the more general “nuclear waste disposal activities” appropriation for this purpose. Id. (quoting Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, 117 Stat. 1827, 1865 (2003)). The court explained that the holding was an outgrowth of the well-known “general principle of statutory construction reiterated repeatedly by thе Supreme Court, that a more specific statute will be given precedence over a more general one.” Id. (internal citations and quotations omitted) (quoting Busic v. United States, 446 U.S. 398, 406 (1980)).
The Government argues that Nevada is inapposite for three related reasons. First, it contends that the rule that a specific appropriation precludes the use of a general appropriation for that purpose applies only when the two appropriations are made to the same agency. But Nevada neither stated nor implied any such limitation and in fact stated that the specific-controls-general rule applies “even when
Next, the Government argues that the specific-controls-general rule applies only when there is a conflict between the two statutes. There is no conflict, it contends, between Congress‘s appropriation to DHS for border barrier construction and DoD‘s use of its own funds to assist other agencies by constructing barriers to block drug smuggling corridors. But this misses the point of the rule—there is almost never an explicit conflict between a specific appropriation and a general appropriation that embrace the same subject matter. The rule assumes that the specific appropriation implicitly establishes the upper limit on the amount of funds that can be used for that specific purpose, and it is with respect to this implicit limit that the use of a more general appropriation conflicts.
Indeed, that the $1.375 billion in the CAA was intended to establish the limit of funding for border wall construction is further illustrated by the fact that the CAA specifies where the construction could take place and establishes a consulting process to determine if and how further border barriers could be built. Pub. L. No. 116-6 at § 230(a)(1), (c), 133 Stat. at 28. The clear implication is that Congress wanted more information on the project before it agreed to appropriate funds for border barrier construction in areas other than the Rio Grande Valley Sector. And, where the CAA contains an implied specific limit on where and to what extent funds may be spent on border wall construction at the southern border, that limit controls over DoD‘s more general authority to assist other agencies by building roads and fences to block drug smuggling corridors at international borders. See Nevada, 400 F.3d at 16.
Lastly, the Government points out that the CAA does not include any express prohibition on DoD spending funds to construct border barriers. As will be discussed, this is inaccurate. See infra § III.B.1.b. But it is also irrelevant. Congress enacts laws with knowledge that “[t]he established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” United States v. MacCollom, 426 U.S. 317, 321 (1976). It was thus unnecessary for Congress to enact an express prohibition; so long as it did not enact explicit permission, the spending was prohibited. Nonetheless, Congress actually did expressly prohibit DoD from spending additional funds on the border wall when it included Section 739 in the CAA.
b. Section 739 of the CAA Explicitly Prohibits Altering the Budget Appropriated for Border Wall Construction Because it was Included in a Presidential Budget Request.
In Section 739 of the CAA, Congress enacted a prohibition on using any funds to alter the appropriated budget of “any program, project, or activity as proposed in
The Government responds that the phrase “program, project, or activity,” is a term of art that the GAO defines as “[a]n element within a budget account.” GAO, A GLOSSARY OF TERMS USED IN THE FEDERAL BUDGET PROCESS 80 (2005), https://www.gao.gov/assets/80/76911.pdf. It is this specific meaning that was intended when the CAA used the phrase in Section 739, the Government contends, and because DoD‘s redirection of funds does not alter the amount of funds in DHS‘s budget account for border wall construction, Section 739 is inapplicable.
As an initial matter, even if the Government Defendant‘s reading of Section 739 were correct, it would still prohibit the transfers at issue in this case. The plain text of Section 739 prohibits altering the budget of any program, project, or activity contained in “the President‘s budget request for a fiscal year,” which would include any fiscal year and not just fiscal year 2019. The President‘s 2020 budget request included funding for DoD to construct a border wall. Thus, even under the Government‘s interpretation, Section 739 would prohibit altering DoD‘s budget for border wall construction from the time the 2020 budget request was submitted to Congress “until such proposed change is subsequently enacted in an appropriation Act.” Because the Acting Secretary of Defense‘s approval of the transfer of the
Moreover, it is doubtful Congress intended the phrase “program, project, or activity” in Section 739 to carry a specialized
Because Section 739 prohibits the transfers at issue here under either interpretation, we ultimately need not decide which is correct. The Border Wall is a project that was proposed in a President‘s budget request for a fiscal year, and, accordingly, I would hold that the Acting Secretary of Defense violated Section 739 when he used appropriated funds to alter the budget appropriated to border wall construction.
2. The Redirection of the § 2808 Funds Was Not Authorized by § 2808.
The reasoning set forth above regarding why the redirection of the
Title
Prior to the passage of the NEA, over 400 separate “emergency statutes” permitted the President to declare national emergencies
An early draft of the legislation authorized an emergency declaration only when “the President finds that a proclamation of a national emergency is essential to the preservation, protection and defense of the Constitution or the common defense, safety, or well-being of the territory or people of the United States.” S. 977, 94th Cong. § 201(a) (1975). However, this language was removed by the Senate Committee on Government Operations because the committee believed it was too broad:
Following consultations with several constitutional law experts, the committee concluded that section 201(a) is overly broad, and might be construed to delegate additional authority to the President with respect to declarations of national emergency. In the judgment of the committee, the language of this provision was unclear and ambiguous and might have been construed to confer upon the President statutory authority to declare national emergencies, other than that which he now has through various statutory delegations. The Committee amendment clarifies and narrows this language. The Committee decided that the definition of when a President is authorized to declare a national emergency should be left to the various statutes which give him extraordinary powers. The National Emergencies Act is not intended to enlarge or add to Executive power. Rather, the statute is an effort by the Congress to establish clear procedures and safeguards for the exercise by the President of emergency powers conferred upon him by other statutes.
S. Rep. No. 94-1168 (emphasis added). Thus, the NEA requires that, when a national emergency is declared, the President must specifically identify the statutory powers he or she intends to invoke, with any updates issued as subsequent executive orders as necessary.
Accordingly, even assuming
First,
More importantly, however, even assuming this threshold requirement is met,
The border wall clearly cannot reasonably be construed as a military as “a base, camp, post, station, yard, center.” Nor does the wall fall into the residual clause for construction with respect to “other activit[ies]” under military jurisdiction. “[U]nder the established interpretative canons of noscitur a sociis and ejusdem generis, where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those
Apparently recognizing this infirmity in its legal theory, DoD has administratively assigned the land on which the border barriers are to be built to Fort Bliss. The Government appears to alternatively argue that this administrative assignment makes the border wall “construction with respect to a military installation.” Yet the border wall bares no objective, logical relationship to Fort Bliss. Considering a project “construction with respect to” a base merely because it is administratively assigned to Fort Bliss would write virtually all limitations out of the statutory definition of military construction, allowing it to be circumvented at will. See Sierra Club IV, 977 F.3d at 884-87 (concluding that the border wall is not “military construction” as the term is statutorily defined, as the Government‘s argued interpretation would give the executive branch “unfettered discretion to divert funds to any land it deems under military jurisdiction“).
Yet, even if the border wall were “military construction,”
Accordingly, I would hold that, by its own terms,
C. The Remedy
The Government argues that, even if the district court was correct that the redirection the
The Court in Winter considered a preliminary injunction prohibiting the Navy from using a particular type of sonar until it had performed the required environmental impact review. Id. at 17. The use of the sonar itself was not unlawful;
Winter is inapposite here. The Government argues that the district court erred in weighing the relative harm because El Paso County‘s economic and reputational injuries are outweighed by the damage the injunction would allegedly do to the nation‘s “compelling interests in safety and in the integrity of our borders.” Nat‘l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 672 (1989). But the Government cites no case in which a court has found that the Government‘s challenged action violates the law and has declined to issue a requested injunction prohibiting that action. Some courts, in fact, have held that government can never “suffer harm from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). Moreover, the sum effect of an injunction would be to preserve the status quo as it existed before the unlawful transfer and construction were undertaken. See Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016) (“[T]he maintenance of the status quo is an important consideration in granting a stay.” (quoting Dayton Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978) (Rehnquist, C.J., in chambers))). There is thus no “irreparable” harm to the Government‘s interests, as it remains free to seek funding for a border barrier through lawful means.
In the alternative, the Government argues that the district court should have limited its injunction to the expenditure of the $20 million in funds that would have gone to the Fort Bliss project, citing the rule that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). But Califano itself rejected such an argument, stating that “the scope of injunctive relief is dictated by the extent of the viоlation established, not by the geographical extent of the plaintiff class.” Id.
The Government also relies on a concurrence by Justice Gorsuch questioning the propriety of nationwide injunctions as a general matter. See DHS v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., concurring in grant of stay). But the concurrence was not the holding of the Court, and it therefore cannot overrule our circuit precedents holding that, “it is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.” Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015). Where the district court determined that all of the Government‘s
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The Supreme Court has repeatedly reaffirmed that, under our Constitution, Congress‘s “power of the purse” is an important check on the Executive branch. United States v. Richardson, 418 U.S. 166, 178 n.11 (1974). The founders vested in the legislature the power to control appropriations in order that it would serve as a “continuing monitor[] of the wisdom and soundness of Executive action.” Laird v. Tatum, 408 U.S. 1, 15 (1972). The President‘s misuse of emergency powers and creative accounting techniques to openly defy the spending limits set by Congress flies in the face of that vision, and the majority‘s decision today goes a long way toward sanctioning this blatant subversion of the constitutional design. Indeed, between the artificially high bar the majority erects for standing and the Supreme Court‘s apparent strict application of the zone-of-interests requirement in this context, it is difficult to imagine a plaintiff that could challenge transfers like the ones at issue here, no matter how unlawful. Because both these dynamics—the flouting by the Executive of limitations imposed by the legislature and the insulation of unauthorized Executive action from judicial review—are at odds with the separation of powers that is the foundation of our constitutional system, I dissent.
Notes
For one, the conclusion that there is a link between legalizing sports gambling and harm to the integrity of the Leagues games has been reached by several Congresses that have passed laws addressing gambling and sports, see, e.g., H.R.Rep. No. 88 1053 (1963), 1964 U.S.C.C.A.N. 2250, 2251 (noting that when gambling interests are involved, the temptation to fix games has become very great, which in turn harms the honesty of the games); Senate Report at 3555 (noting that PASPA was necessary to maintain the integrity of our national pastime ). It is, indeed, the specific conclusion reached by the Congress that enacted PASPA, as reflected by the statutory cause of action conferred to the Leagues to enforce the law when their individual games are the target of state-licensed sports wagering. See
28 U.S.C. § 3703 . And, presumably, it has also been at least part of the conclusions of the various state legislatures that have blocked the practice throughout our history.* * *
The record is replete with evidence showing that being associated with gambling is stigmatizing, regardless of whether the gambling is legal or illegal. Before the District Court were studies showing that: (1) some fans from each League viewed gambling as a problem area for the Leagues, and some fans expressed their belief that game fixing most threatened the Leagues integrity [App. 1605 06]; (2) some fans did not want a professional sports franchise to open in Las Vegas, and some fans would be less likely to spend money on the Leagues if that occurred; and (3) a large number of fans oppose the expansion of legalized sports betting. [2293 98.] This more than suffices to meet the Leagues evidentiary burden under Keene and Doe being associated with gambling is undesirable and harmful to one s reputation.
Although the Leagues could end their injury in fact proffer there, they also set forth evidence establishing a clear link between the Sports Wagering Law and increased incentives for game-rigging. First, the State s own expert noted that state-licensing of sports gambling will result in an increase in the total amount of (legal plus illegal) gambling on sports. [App. 325]. Second, a report by the National Gambling Impact Study Commission, prepared at the behest of Congress in 1999, explains that athletes are often tempted to bet on contests in which they participate, undermining the integrity of sporting contests. App. 743. Third, there has been at least one instance of match-fixing for NCAA games as a result of wagers placed through legitimate channels, and several as a result of wagers placed in illegal markets for most of the Leagues, and NCAA players have affected or have been asked to affect the outcome of games because of gambling debt. App. 2245. Thus, more legal gambling leads to more total gambling, which in turn leads to an increased incentive to fix or attempt to fix the Leagues matches.