SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION v. DONALD J. TRUMP, in his official capacity as President of the United States; MARK T. ESPER, in his official capacity as Secretary of the Defense; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the Department of the Treasury
Nos. 19-16102, 19-16300
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed June 26, 2020
D.C. No. 4:19-cv-00892-HSG; Appeal from the United States District Court for the Northern District of California; Haywood S. Gilliam, Jr., District Judge, Presiding; Argued and Submitted November 12, 2019, San Francisco, California
OPINION
Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins,
Opinion by Chief Judge Thomas; Dissent by Judge Collins
SUMMARY*
Appropriations
The panel affirmed the district court‘s judgment in an action brought by the Sierra Club and the Southern Border Communities Coalition (collectively the “Sierra Club“) challenging the Department of Defense‘s budgetary transfers to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona.
At issue is whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 (“Section 8005“) authorized the budgetary transfers to fund construction of the wall.
The panel held that the Sierra Club had Article III standing to pursue its claims. Specifically, the panel held that Sierra Club‘s thousands of members live near and frequently visit areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities; and construction of a border wall and related infrastructure will acutely injure these interests because the Department of Homeland Security is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests. Additionally, the interests of Sierra Club‘s members in the lawsuit are germane to the organization‘s purpose. Similarly, the panel held that the Southern Border Communities Coalition alleged facts that support that it had standing to sue on behalf of itself and its member organizations. The panel further held that Sierra Club‘s injuries were fairly traceable to the Section 8005 transfers. In addition, the panel held that the injury to Sierra Club members and Southern Border Communities Coalition was likely to be redressed by a favorable judicial decision.
In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here.
The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the
The panel held that the Sierra Club was a proper party to challenge the Section 8005 transfers, and concluded that Sierra Club had both a constitutional and an ultra vires cause of action. First, the panel held that where plaintiffs, like Sierra Club, establish that they satisfy the requirements of Article III standing, they may invoke separation of powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority. Because the federal defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, the panel held that Sierra Club had a constitutional cause of action. Second, the panel held that the Sierra Club had an equitable ultra vires cause of action to challenge the Department of Defense‘s transfer of funds. Where it is alleged that the Department of Defense has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.
The panel rejected the federal defendants’ additional arguments. First, the federal defendants asserted that Sierra Club‘s challenge must be construed as an Administrative Procedure Act (“APA“) claim, rather than as a constitutional or ultra vivres cause of action. The panel held that the
Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. First, the panel agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. Second, the panel agreed with the district court that the balance of equities and the public interest favored injunctive relief. The panel held that the Supreme Court‘s decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), did not require the panel to vacate the injunction.
Judge Collins dissented. He agreed that at least the Sierra Club established Article III standing, but in his view the organizations lacked any cause of action to challenge the transfers. Even assuming that they had a cause of action Judge Collins would conclude that the transfers were lawful. Accordingly, he would reverse the district court‘s partial summary judgment for the organizations and remand for an entry of partial summary judgment in favor of the defendants.
COUNSEL
H. Thomas Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan and James M. Burnham, Deputy Assistant Attorneys General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina Shamsi, and Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Mollie M. Lee and Christine P. Sun, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; David Donatti and Andre I. Segura, American Civil Liberties Union Foundation of Texas, Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra Club Environmental Law Program, Oakland, California; for Plaintiffs-Appellees.
James F. Zahradka II (argued), Brian J. Bilford, Sparsh S. Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M. Smith, Deputy Attorneys General; Michael P. Cayaban, Christine Chuang, and Edward H. Ochoa, Supervising Deputy Attorneys General; Robert W. Byrne, Sally Magnani, and Michael L. Newman, Senior Assistant Attorneys General; Xavier Becerra, Attorney General; Attorney General‘s Office, Oakland, California; Jennie Lusk, Civil Rights Bureau Chief; Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas, Chief Deputy Attorney General; Hector Balderas, Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Amici Curiae States of California and New Mexico.
Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C.; Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae United States Representative Andy Barr.
John W. Howard, George R. Wentz Jr., Richard Seamon, and D. Colton Boyles, Davillier Law Group LLC, Sandpoint, Idaho, for Amicus Curiae State of Arizona House of Representatives Federal Relations Committee.
Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri; Michael J. O‘Neill and Matthew C. Forys, Landmark Legal Foundation, Leesburg, Virginia; for Amici Curiae Angel Families, Sabine Durden, Don Rosenberg, Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen Laquerre, Dennis Bixby, and Advocates for Victims of Illegal Alien Crimes.
Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amici Curiae Former Members of Congress.
Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Federal Courts Scholars.
Steven A. Zalesin, Adeel A. Mangi, and Amir Badat, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amici Curiae 75 Religious Organizations.
Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Kathleen R. Hartnett, Boies Schiller Flexner LLP, San Francisco, California; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Former United States Government Officials.
Samuel F. Daughety and Suzanne R. Schaeffer, Dentons US LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney General, Tohono O‘Odham Nation, Sells, Arizona; for Amicus Brief Tohono O‘Odham Nation.
OPINION
THOMAS, Chief Judge:
We consider in this appeal challenges by the Sierra Club and the Southern Border Communities Coalition (“SBCC“)1 to the Department of Defense‘s budgetary transfers
I
We recounted the essential underlying facts in the companion case. However, we briefly outline them here for convenience of reference.
The President has long supported the construction of a border wall on the southern border between the United States and Mexico. Since the President took office in 2017, however, Congress has repeatedly declined to provide the amount of funding requested by the President.
The debate over border wall funding came to a head in December of 2018. During negotiations to pass an appropriations bill for the remainder of the fiscal year, the President announced that he would not sign any legislation that did not allocate substantial funds to border wall construction. On January 6, 2019, the White House requested $5.7 billion to fund the construction of approximately 234 miles of new physical barrier.3 Budget negotiations concerning border wall funding reached an impasse, triggering the longest partial government shutdown in United States history.
After 35 days, the government shutdown ended without an agreement to provide increased border wall funding in the amount requested by the President. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 (“CAA“), which included the Department of Homeland Security Appropriations Act for Fiscal Year 2019, Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The CAA appropriated only $1.375 billion for border wall construction, specifying that the funding was for “the construction of primary pedestrian fencing . . . in the Rio Grande Valley Sector.” Id. § 230(a)(1). The President signed the CAA into law the following day.
The President concurrently issued a proclamation under the National Emergencies Act,
At the time Shanahan authorized Section 284 support for these border wall construction projects, the counter-narcotics support account contained only $238,306,000 in unobligated funds, or less than one tenth of the $2.5 billion needed to complete those projects. To provide the support requested, Shanahan invoked the budgetary transfer authority found in Section 8005 of the 2019 DoD Appropriations Act to transfer funds from other DoD appropriations accounts into the Section 284 Drug Interdiction and Counter-Drug Activities-Defense appropriations account.
For the first set of projects, Shanahan transferred $1 billion from Army personnel funds. For the second set of projects, Shanahan transferred $1.5 billion from “various excess appropriations,” which contained funds originally appropriated for purposes such as modification of in-service missiles and support for U.S. allies in Afghanistan.
As authority for the transfers, DoD invoked Section 8005, which provides, in relevant part that:
Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes, and for the same time period, as the appropriation or fund to which transferred.6
Although Section 8005 does not require formal congressional approval of transfers, historically DoD had adhered to a “gentleman‘s agreement,” by which it sought approval from the relevant congressional committees before transferring the funds. DoD deviated from this practice here—it did not request congressional approval before authorizing the transfer. Further, the House Committee on Armed Services and the House Committee on Appropriations both wrote letters to DoD formally disapproving of the reprogramming action after the fact. Moreover, with respect to the second transfer, Shanahan expressly directed that the transfer of funds was to occur “without regard to comity-based policies that require prior approval from congressional committees.”
In the end, Section 8005 was invoked to transfer $2.5 billion of DoD funds appropriated for other purposes to fund border wall construction.
II
On February 19, 2019, Sierra Club filed a lawsuit challenging the Executive Branch‘s funding of the border wall.7 Sierra Club pled theories of violation of the 2019 CAA, violation of the constitutional separation of powers, violation of the Appropriations Clause, violation of the Presentment Clause, violation of the National Environmental Policy Act (“NEPA“), and ultra vires action.
Sierra Club subsequently filed a motion requesting a preliminary injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona‘s Yuma Sector and New Mexico‘s El Paso Sector. The district court held that Sierra Club had standing to assert its Section 8005 claims, and granted the preliminary injunction motion. The Federal Defendants timely appealed the preliminary injunction order. Sierra Club subsequently sought a supplemental preliminary injunction to block additional construction planned in California‘s El Centro Sector and Arizona‘s Tucson Sector.
Sierra Club also filed a motion requesting partial summary judgment, a declaratory judgment, and a permanent injunction to enjoin the transfer of funds pursuant to Section 8005 to construct a border wall in Arizona‘s Yuma and Tucson Sectors, California‘s El Centro Sector, and New Mexico‘s El Paso Sector. The Federal Defendants cross-moved for summary judgment and opposed Sierra Club‘s motion. The district court granted Sierra Club‘s motion for partial summary judgment and granted its request for a declaratory judgment and
The Federal Defendants initially filed a motion to stay the district court‘s preliminary injunction, and in their later briefing on summary judgment, they requested that the district court stay any permanent injunction granted pending appeal. The district court denied both requests. The Federal Defendants filed an emergency motion for stay of the preliminary injunction pending appeal in this Court and subsequently sought a stay of the permanent injunction, relying on the same arguments. Sierra Club v. Trump, 929 F.3d 670, 685 (9th Cir. 2019). An emergency motions panel of this Court considered whether to stay the injunction pending appeal, and held that a stay was not warranted. Id. at 677. The Federal Defendants then filed an application for a stay pending appeal with the Supreme Court. The Supreme Court granted the application, noting that “[a]mong the reasons is 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 Section 8005.” Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.).
We now consider the merits of the Federal Defendants’ appeal of the district court‘s grant of partial summary judgment, grant of a declaratory judgment, and grant of a permanent injunction to Sierra Club.8 We review the existence of Article III standing de novo. See California v. U.S. Dep‘t of Health & Human Servs., 941 F.3d 410, 420 (9th Cir. 2019). We review questions of statutory interpretation de novo. See United States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017).
III
Sierra Club has Article III standing to pursue its claims. To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).9 An organization has standing to sue on behalf of its members when “its members would otherwise have standing to sue in their own right,” and when “the interests it seeks to protect are germane to the organization‘s purpose.” United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert. Comm‘n, 434 U.S. 333, 343 (1977)).10 An organization has standing to sue on its own behalf when it suffers “both a diversion of its resources and a frustration of its mission.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (quoting Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). It must “show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. At summary judgment, a plaintiff cannot rest on mere allegations, but “must set forth by affidavit or other evidence specific facts.” Clapper v. Amnesty Int‘l. USA, 568 U.S. 398, 412 (2013) (quotations and citation omitted). However, these specific facts “for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561.
Here, Sierra Club and SBCC have alleged facts that support their standing to sue on behalf of their members. Sierra Club has alleged that the actions of the Federal Defendants will cause particularized and concrete injuries to its members, and SBCC has shown that it has suffered a concrete injury itself.
Sierra Club has more than 400,000 members in California, over 9,700 of whom belong to its San Diego Chapter. Sierra Club‘s Grand Canyon Chapter, which covers the State of Arizona, has more than 16,000 members. Sierra Club‘s Rio Grande Chapter includes over 10,000 members in New Mexico and West Texas. These members visit border areas such as the Tijuana Estuary (California), the Otay Mountain Wilderness (California), the Jacumba Wilderness Area (California), the Sonoran Desert (Arizona), Cabeza Prieta National Wildlife Refuge (Arizona), and the Chihuahan Desert (New Mexico).
Sierra Club‘s thousands of members live near and frequently visit these areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities. They obtain recreational, professional, scientific, educational, and aesthetic benefits from their activities in these areas, and from the wildlife dependent upon the habitat in these areas. The construction of a border wall and related infrastructure will acutely injure these interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests.
Sierra Club has adequately set forth facts and other evidence by declaration, which taken as true, support these allegations for the purpose of Article III standing.
Sierra Club members Orson Bevins and Albert Del Val have alleged that they will be injured by construction of Yuma Project 1. Bevins avers that he visits the area several times per year and is concerned that the wall “would disrupt the desert views and inhibit [him] from fully appreciating [the] area,” and that the additional presence of U.S. Customs and Border Protection agents “would further diminish[] [his] enjoyment of these areas” and “deter[] [him] from further exploring certain areas.” Del Val worries that “construction
Sierra Club member Elizabeth Walsh has alleged that construction of El Paso Sector Project 1 would injure her because “[a]s part of [her] professional and academic work [she] routinely visit[s] and stud[ies]” the area where the project would be built to “supervise several ongoing and long-term biology studies in this area with graduate students on the aquatic diversity of ephemeral wetlands known locally as playas.” Among other things, she is worried that border wall construction would “negatively impact the scientific playa studies . . . because a wall could impede vital natural drainage patterns for the playas.”
Sierra Club member Carmina Ramirez has alleged that she “will be harmed culturally and aesthetically” if El Centro Sector Project 1 is built because she has spent her entire life in the area surrounding the U.S.-Mexico Border, including the El Centro Sector, and she believes that border wall construction would “drastically impact [her] ability to enjoy the local natural environment,” because she would “see a high border wall instead of [the] beautiful landscape,” and “drastically impact [her] cultural identity by fragmenting [her] community.” Construction will make her “less likely to hike Mount Signal and enjoy outdoor recreational activities; and when [she does] undertake those activities, [her] enjoyment of them will be irreparably diminished.”
Sierra Club member Ralph Hudson “recreat[es] in the wilderness areas along the U.S.-Mexico border” in the area referred to as the Tucson Sector and has done so for 20 years.
He uses the land “to hike, take photos, and explore the natural history.” He is “extremely concerned that Tucson Projects 1 and 2 will greatly detract from [his] ability to enjoy hiking, camping, and photographing these landscapes.”
Sierra Club member Margaret Case lives a few miles from the border, and she asserts that she will be injured by the construction of Tucson Sector Project 3. “With each increase and escalation in enforcement along the border, [her] and other border residents’ quality of life decreases” and “[t]he proposed wall will . . . extend an already unwanted eyesore in the middle of a landscape whose beauty [she] treasure[s], irrevocably harming [her] enjoyment of that landscape.”
Additionally, the interests of Sierra Club‘s members in this lawsuit are germane to the organization‘s purpose. Sierra Club is a national organization “dedicated to exploring, enjoying, and protecting the wild places of the earth; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives.” Sierra Club‘s organizational purpose is at the heart of this lawsuit, and it easily satisfies this secondary requirement.
SBCC has also alleged facts that support that it has standing to sue on behalf of itself and its member organizations. SBCC alleged that since the Federal Defendants proposed border wall construction, it has had to “mobilize[] its staff and its affiliates to monitor and respond to the diversion of funds and the construction caused by and accompanying the national emergency declaration.” These “activities have consumed the majority of SBCC staff‘s time, thereby interfering with SBCC‘s core advocacy regarding border militarization, Border Patrol law-enforcement activities, and immigration reform,” but it has had no choice because it “must take these actions in furtherance of its
SBCC Director Vicki Gaubeca confirms these allegations. She has stated that a “border wall, as a physical structure and symbol, is contrary to the goals of SBCC and the needs of border communities.” She avers that the “emergency declaration and the threat and reality of construction have caused [SBCC] to reduce the time [it] spend[s] on [its] core projects, including public education about border policies, community engagement on local issues, and affirmative advocacy for Border Patrol accountability and immigration reform.” SBCC and its member organizations have instead “been forced to devote substantial time to analyze and respond to the declaration and the promise to build border walls across the southern border” “at a substantial monetary and opportunity cost.”
These allegations are sufficient to establish that, if funds are transferred to the border wall construction projects, Sierra Club members and SBCC will each suffer injuries in fact.
Sierra Club and SBCC have also shown that such injuries are “fairly traceable to the challenged action of the [Federal Defendants], and [are] not the result of the independent action of some third party not before the court.” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). It makes no difference that the border wall construction is the product of other statutory provisions, such as Section 284, in addition to Section 8005. “Causation may be found even if there are multiple links in the chain connecting the defendant‘s unlawful conduct to the plaintiff‘s injury, and there‘s no requirement that the defendant‘s conduct comprise the last link in the chain.” Id. The Federal Defendants could not build the border wall projects challenged by Sierra Club without invoking Section 8005‘s transfer authority—without this authority, there was no money to build these portions of the border wall; therefore, construction is fairly traceable to the Section 8005 transfers.
The injury to Sierra Club members and SBCC is likely to be redressed by a favorable judicial decision. A judicial order prohibiting the Federal Defendants from spending the money transferred pursuant to Section 8005 would stop construction, thereby preventing the harm alleged by Plaintiffs. Thus, Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants’ actions.
IV
First, we consider whether Section 8005 or any constitutional provision authorized DoD to transfer the funds at issue. We hold they did not.
A
Section 8005 provides DoD with limited authority to transfer funds between different appropriations accounts, but it provides no such authority “unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” In the opinion filed today in the companion case, State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), we hold that Section 8005 did not authorize the transfer of funds at issue here because “the border wall was not an unforeseen military requirement,” and “funding for the wall had been denied by Congress.” We reaffirm this holding here
B
The “straightforward and explicit command” of the Appropriations Clause11 “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (quotation and citation omitted). The Clause is “a bulwark of the Constitution‘s separation of powers.” U.S. Dep‘t. Of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012); see also United States v. McIntosh, 833 F.3d 1163, 1174-75 (9th Cir. 2016). It “assure[s] that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents.” Office of Pers. Mgmt., 496 U.S. at 427-28. Without it, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.” Id. at 427 (quoting Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)).
Accordingly, “[t]he United States Constitution exclusively grants the power of the purse to Congress, not the President.” City and Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018) (citing
Here, the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. These funds were appropriated for other purposes, and the transfer amounted to “drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” McIntosh, 833 F.3d at 1175.
Therefore, the transfer of funds here was unlawful.
V
All that is left for us to decide, then, is whether Sierra Club is a proper party to challenge the Section 8005 transfers. Sierra Club asserts that it has a number of viable causes of action—including a constitutional cause of action and an ultra vires cause of action—while the Federal Defendants assert that Sierra Club has none.
The Supreme Court stay order suggests that Sierra Club may not be a proper challenger here. See Sierra Club, 140 S. Ct. at 1. We heed the words of the Court, and carefully analyze Sierra Club‘s arguments. Having done so, we conclude that Sierra Club has both a constitutional and an ultra vires cause of action.
In reaching this result, we realize that this is a rare case in which the “judiciary may . . . have to intervene in determining where the authority lies as between the democratic forces in our scheme of government.” Youngstown, 343 U.S. at 597 (1952) (Frankfurter, J. concurring). In doing so, we remain “wary and humble,” id., for “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” id. at 614. But where, as here, “Congress could not more clearly and emphatically have withheld [the] authority,” id. at 602,
A
First, we consider whether Sierra Club has a constitutional cause of action to challenge the Federal Defendants’ transfer. We hold that it does.
Certain provisions of the Constitution give rise to equitable causes of action. Such causes of action are most plainly available with respect to provisions conferring individual rights, such as the Establishment Clause or the Free Exercise Clause. See Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018); Flast v. Cohen, 392 U.S. 83 (1968). But certain structural provisions give rise to causes of action as well. See Nat. Labor Relations. Bd. v. Noel Canning, 573 U.S. 513, 556-57 (2014) (cause of action based on the Recess Appointments Clause); Bond v. United States, 564 U.S. 211, 225-26 (2011) (cause of action based on structural principles of federalism); Clinton v. City of New York, 524 U.S. 417, 434-36 (1998) (cause of action based on the Presentment Clause); INS v. Chadha, 462 U.S. 919, 943-44 (1983) (cause of action based on the constitutional requirement of bicameralism and presentment); McIntosh, 833 F.3d at 1174-75 (cause of action based on the Appropriations Clause).
In Bond, the Supreme Court articulated why certain structural constitutional provisions give rise to causes of action. The Court considered “whether a person indicted for violating a federal statute has standing to challenge its validity on the grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.” Bond, 564 U.S. at 214. The Court held that “[j]ust as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism.” Id. at 223-24. It reasoned that the challenge was permissible because “structural principles secured by the separation of powers protect the individual as well,” and “[a]n individual has a direct interest in objecting to laws that upset the constitutional balance . . . when the enforcement of those laws causes injury that is concrete, particular, and redressable.” Id. at 222. In other words, an individual who otherwise meets the requirements of Article III standing may challenge government action that violates structural constitutional provisions intended to protect individual liberties.
We have held that the Appropriations Clause contains such a cause of action. See McIntosh, 833 F.3d at 1173-74. In McIntosh, defendants moved to enjoin their prosecutions for federal marijuana offenses on the grounds that a congressional appropriations rider prohibited the Department of Justice from spending federal funds on such prosecutions. Id. at 1168. We held that “[the Appropriations Clause] constitutes a separation-of-powers limitation that Appellants can invoke to challenge
The cause of action available to the plaintiffs in McIntosh is available to Sierra Club here. Congress decided the order of priorities for border security. In doing so, it chose to allocate $1.375 billion to fund the construction of pedestrian fencing in Texas. See
The Federal Defendants argue that Dalton v. Specter, 511 U.S. 462 (1994) forecloses this result. They assert that Dalton‘s proposition that not “every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution,” means that when there is a claim that an Executive Branch official acted in excess of his statutory authority, there is no constitutional violation. Id. at 472. But Dalton does not hold that every action in excess of statutory authority is not a constitutional violation.13 Rather, Dalton suggests that some
actions in excess of statutory authority may be constitutional violations, while others may not. Specifically, Dalton suggests that a constitutional violation may occur when an officer
Dalton‘s discussion of Youngstown only underscores this point. The Court determined that Youngstown could not stand for the proposition “that an action taken by the President in excess of his statutory authority necessarily violates the Constitution” because in Youngstown “no statutory authority was claimed.” Dalton, 511 U.S. at 473 (emphasis added). The Court concluded only that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.” Id. Thus, Dalton and its discussion of Youngstown do not address situations in which the President exceeds his or her statutory authority, and in doing so, also violates a specific constitutional prohibition, as is the case here.
Neither does Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), require an opposite result here. In Armstrong, the Supreme Court rejected the argument that the Supremacy Clause created a private right of action. Id. at 325-27. But the Supremacy Clause is not the Appropriations Clause: while the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government,” id. at 325 (citing The Federalist No. 33, p. 207 (J. Cooke ed. 1961)), the Appropriations Clause contains an explicit prohibition, which protects individual liberty, because “[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury,” McIntosh, 833 F.3d at 1175. “The individual loses liberty in a real sense if [the appropriations power] is not subject to traditional constitutional constraints.” Clinton v. City of New York, 524 U.S. at 451 (Kennedy, J., concurring). Thus, while it might be “strange” “to give a clause that makes federal law supreme a reading that limits Congress‘s power to enforce that law,” Armstrong, 575 U.S. at 326, it is entirely sensible to give a clause that restricts the power of the federal government as a whole a reading that safeguards individual liberty.
Therefore, because the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, we hold that Sierra Club has a constitutional cause of action here.
B
Second, we consider whether Sierra Club has an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer. We hold that it does.
Whether Sierra Club can assert an equitable ultra vires cause of action turns on “whether the relief [it] request[s] . . . was traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999). Equitable actions to enjoin ultra vires official conduct do not depend
The relief Sierra Club requests has been traditionally available. “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, 575 U.S. at 327 (citing Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956)); see also Harmon v. Brucker, 355 U.S. 579, 581-82 (1958) (“Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers.“). Such causes of action have been traditionally available in American courts: “[w]hen Congress limits its delegation of power, courts infer (unless the statute clearly directs otherwise) that Congress expects this limitation to be judicially enforced.” Dart v. United States, 848 F.2d 217, 223 (D.C. Cir. 1988).
The passage of the APA has not altered this presumption. “Prior to the APA‘s enactment . . . courts had recognized the right of judicial review of agency actions that exceeded authority,” and “[n]othing in the subsequent enactment of the APA altered [that] doctrine of review,” to “repeal the review of ultra vires actions.” Id. at 224. “When an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Id.
That Sierra Club has a cause of action to enjoin the unconstitutional actions at issue here is best illustrated by Youngstown. There, Congress passed numerous statutes authorizing the President to take personal and real property under specific conditions. 343 U.S. at 585-86. During the Korean War, however, President Truman signed an executive order seizing most of the nation‘s steel mills, even though the conditions of the statutes had not been satisfied as a matter of fact. Id. at 582, 586. It fell to the Supreme Court to determine whether the President had constitutional authority to seize the steel mills—it held he did not and affirmed the district court injunction. Id. at 588-589. The Court never questioned that it had the authority to provide the requested relief.
Such is the case here. Section 8005 authorizes DoD to transfer funds under certain conditions; however, as explained previously, DoD failed to satisfy those conditions. Likewise, as explained previously, the Executive Branch lacks independent constitutional authority to fund border wall construction. If an equitable ultra vires action was available to the plaintiffs in Youngstown, it surely must be available to Sierra Club here.
A number of D.C. Circuit cases reaffirm that review is ordinarily available when an agency exceeds its delegation of authority. In Chamber of Commerce of the United States v. Reich, the D.C. Circuit considered whether the Chamber of Commerce had a cause of action to challenge an executive order barring the federal government from contracting with employers who hire permanent replacements during a lawful strike. 74 F.3d 1322, 1325-26 (D.C. Cir. 1996). The government argued that the Chamber of Commerce lacked a statutory
Likewise, in Dart v. United States, the D.C. Circuit considered whether the plaintiff could challenge the Secretary of Commerce‘s decision to impose civil sanctions for a violation of the Export Administration Act (“EAA“). See 848 F.2d at 219. The court held that even though the EAA expressly limited judicial review, the court retained the ability to review whether the Secretary exceeded the authority delegated by the statute. See id. at 223-34. It explained that “the presumption of judicial review is particularly strong where an agency is alleged to have acted beyond its authority.” id. at 223. It ultimately concluded that the Secretary had done just that and invalidated the sanctions he imposed.
These cases support our holding here that Sierra Club has an equitable ultra vires cause of action to challenge DoD‘s transfer of funds. Where it is alleged that DoD has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.
The Federal Defendants contend that an equitable cause of action is not available to Sierra Club here because equitable remedies are available only when they have been “traditionally available in the specific circumstances presented,” and that the remedies sought here have not been traditionally available in the specific circumstances presented by this case.
The Federal Defendants cite Grupo Mexicano in support of this argument, but that case provides little support for their position. In Grupo Mexicano, the Court considered whether a district court had the power to issue a preliminary injunction to prevent the transfer of assets in which no lien or equitable interest was claimed. See 527 U.S. at 318. The Court concluded it did not. See id. at 333. It held that a district court cannot grant relief that “has never been available before—and especially (as here) a type of relief that has been specifically disclaimed by longstanding judicial precedent,” particularly when “there is absolutely nothing new about debtors’ trying to avoid paying their debts, or seeking to favor some creditors over others.” Id. at 322; see id. at 333.
Here, however, the plaintiffs request a type of relief that is consistent with our longstanding precedent. Indeed, as explained above, the Supreme Court has actually granted injunctive relief in circumstances very similar to these. See, e.g., Youngstown, 343 U.S. at 589. Further, unlike attempts to avoid paying debts, instances of Executive Branch ultra vires action are, fortunately, relatively rare, and unlikely to occur in contexts likely to repeat themselves precisely. Thus, the justifications for limiting equitable relief in Grupo Mexicano are not present
We therefore hold that Sierra Club may assert an equitable ultra vires cause of action to challenge DoD‘s transfer of funds.
C
The Federal Defendants raise a number of additional arguments. We address them here.
First, the Federal Defendants assert that Sierra Club‘s challenge must be construed as an APA claim, rather than as a constitutional or ultra vires cause of action. But neither of the two cases cited by the Federal Defendants compel this conclusion. The Federal Defendants cite Hoefler v. Babbitt, 139 F.3d 726, 728 (9th Cir. 1998) for the proposition that “[t]he APA is the sole means for challenging the legality of federal agency action,” but there, we did not consider whether plaintiffs had a constitutional or ultra vires cause of action; rather, we considered whether the action was properly considered under the APA or the Quiet Title Act. See id. at 728-29. We ultimately held that the former was appropriate. See id. at 729. To extrapolate from a general statement made in this context, as the Federal Defendants do here, goes too far.
Likewise, in Bennett v. Spear, 520 U.S. 154, 175 (1997), the Court did not consider whether plaintiffs had a constitutional cause of action; rather, the Court considered whether the citizen-suit provision of the Endangered Species Act (“ESA“) provided an exclusive statutory remedy, or whether a cause of action was also available under the APA. The Court ultimately determined that “[n]othing in the ESA‘s citizen-suit provision expressly precludes review under the APA, nor do we detect anything in the statutory scheme suggesting a purpose to do so.” Id. If anything, this case underscores that the APA is not to be construed as an exclusive remedy. Thus, the APA does not displace all constitutional and equitable causes of action.
Second, the Federal Defendants assert that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. We reject this argument.
The zone of interests test limits which plaintiffs can invoke statutorily created causes of action. Although earlier cases, such as Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), suggested that the test applied to constitutional causes of action, the Supreme Court‘s most recent zone of interests case, Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), clarifies that the test applies only to statutory causes of action and causes of action under the APA. See id. at 129 (“[T]he modern ‘zone of interests’ formulation originated . . . as a limitation on the cause of action for judicial review conferred by the [APA],” but “[w]e have since made clear, however, that it applies to all statutorily created causes of action.” (emphasis added)).
Common sense supports this approach. As Judge Bork explained in Haitian Refugee Center v. Gracey,
Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant‘s interest normally will not fall within the zone of interests of the very
statutory or constitutional provision that he claims does not authorize action concerning that interest. For example, were a case like Youngstown, to arise today, the steel mill owners would not be required to show that their interests fell within the zone of interests of the President‘s war powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of those powers.
809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (emphasis added). We agree with Judge Bork.14
It would make little sense to require Sierra Club to demonstrate that it falls within the zone of interests of Section 8005. Congress may not have contemplated the environmental advocacy group when it included Section 8005 in the defense budget, but nevertheless, Sierra Club has asserted a legally cognizable injury. The fact Congress did not have Sierra Club as a particular plaintiff in mind when it authorized Section 8005‘s transfer authority does not make its injury less real, nor DoD‘s action more lawful.
If the zone of interests test applies at all, the Appropriations Clause of the Constitution defines the zone of interests because it is the “particular provision of law upon which [Sierra Club] relies” in seeking relief. Bennett, 520 U.S. at 175-76. Section 8005 is relevant only because, to the extent it applies, it authorizes executive action that otherwise would be unconstitutional or ultra vires. That a statute is relevant does not transform a constitutional claim into a statutory one. Sierra Club‘s cause of action stems from the Federal Defendants’ violation of the Appropriations Clause because it seeks to enforce the limits mandated by the clause.
To the extent the zone of interests test ever applies to constitutional causes of action, it asks only whether a plaintiff is “arguably within the zone of interests to be protected . . . by the . . . constitutional guarantee in question.” Boston Stock Exch. v. State Tax Comm‘n, 429 U.S. 318, 320 n.3 (1977) (quoting Data Processing, 397 U.S. at 153). This renders the test nearly superfluous: so long as a litigant is asserting an injury in fact to his or her constitutional rights, he has a cause of action. See ERWIN CHEMERINKSY, FEDERAL JURISDICTION 112 (7th ed. 2016) (citing LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 446 (3d ed. 2000)).
Applying that generous formulation of the test here, Sierra Club falls within the Appropriations Clause‘s zone of interests. Here, Sierra Club is an organization within the United States that is protected by the Constitution. The Appropriations Clause is a “bulwark of the Constitution‘s separation of powers,” U.S. Dep‘t. of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012), and the “separation of powers can serve to safeguard individual liberty,” McIntosh, 833 F.3d at 1174 (quoting Noel Canning, 573 U.S. at 525). The unconstitutional transfer of funds here infringed upon Sierra Club‘s members’ liberty interests, harming their environmental, aesthetic, and recreational interests. Thus, Sierra
VI
Finally, we consider whether the district court abused its discretion in granting Sierra Club a permanent injunction enjoining the Federal Defendants from spending the funds at issue. We hold it did not, and we affirm the district court injunction.
A permanent injunction is appropriate when: (1) a plaintiff will suffer an irreparable injury absent injunction, (2) remedies available at law are inadequate,15 (3) the balance of hardships between the parties supports an equitable remedy, and (4) the public interest would not be disserved. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). When the government is a party to the case, the court should consider the balance of hardships and public interests factors
together. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Although injunctive relief “does not follow from success on the merits as a matter of course,” Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008), we review a district court’s decision to grant a permanent injunction for abuse of discretion, see eBay, 547 U.S. at 391.
The district court did not abuse its discretion in weighing these factors and determining that injunctive relief was warranted. First, we agree with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. An organization can demonstrate irreparable harm by showing that the challenged action will injure its members’ enjoyment of public lands. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (finding irreparable harm when the Forest Service’s proposed project would harm the Alliance’s members’ ability to “view, experience, and utilize” national forest areas in an undisturbed state). We conclude that Sierra Club sufficiently demonstrated that the Federal Defendants’ proposed use of funds would harm its members ability to recreate and enjoy public lands along the border such that it will suffer irreparable harm absent injunction.
The Federal Defendants’ arguments to the contrary are unpersuasive. The Federal Defendants submit that Sierra Club will not be irreparably harmed because its members have plenty of other space to enjoy. We have already rejected the essence of the Federal Defendants’ argument. See All. for the Wild Rockies, 632 F.3d at 1135 (concluding that the Forest Service’s argument that plaintiffs can “view, experience, and utilize other areas of the forest” “proves too much,” because its logical extension is that a “plaintiff can never suffer irreparable injury resulting from environmental harm in a forest as long as there are other areas of the forest that are not harmed” (internal citations omitted)).
Moreover, we agree with the district court that the balance of equities and the public interest favor injunctive relief here. The public has an important interest in “ensuring that statutes enacted by their representatives are not imperiled by executive fiat.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quotations and citation omitted). By passing the CAA, Congress made a calculated choice to fund only one segment of border barrier. The public interest favors enforcing this decision. In contrast, the Federal Defendants cannot suffer harm “from an
The Federal Defendants’ additional arguments do not compel a different result. First, the Supreme Court’s decision in Winter does not require us to vacate the injunction. In Winter, the Supreme Court reversed a preliminary injunction enjoining the Navy from using a particular type of sonar that was essential to its training exercises because it violated NEPA and a number of federal environmental laws. 555 U.S. at 16–17. Key distinctions between this case and Winter render it inapposite. There, plaintiffs’ “ultimate legal claim [was] that the Navy must prepare an [environmental impact statement], not that it must cease sonar training” because the use of the sonar had otherwise been sanctioned by law. Id. at 32. Having determined that the “continuation of the exercises . . . was ‘essential to national security,‘” id. at 18, the President had used his statutory authority to “exempt from compliance those elements of the Federal agency activity that [were] found by the Federal court to be inconsistent with an approved State program,”
By contrast, here, Sierra Club’s ultimate legal claim is that DoD cannot legally use Section 8005 to fund construction of the border wall, and moreover, that no such exemption applies. If anything, Section 8005 itself is a defense against the Executive Branch’s unconstitutional transfer of funds; however, as discussed previously, it offers no such legal cover here. Therefore, while the use of the sonar was not unlawful at the time the Supreme Court vacated the injunction in Winter, DoD’s transfer of funds here is. While the injunction here “merely ends an unlawful practice,” Rodriguez, 715 F.3d at 1145, the injunction in Winter enjoined conduct that had been sanctioned by law, see Winter, 555 U.S. at 32.
Moreover, the public interest at issue in Winter more clearly favored vacating the injunction. “Antisubmarine warfare [was] [] the Pacific Fleet’s top war-fighting priority.” Winter, 555 U.S. at 12. Accordingly, the use of MFA sonar during training missions was deemed “mission-critical,” id. at 14, because it is not only the “most effective technology,” id. at 13, but “the only proven method of identifying submerged diesel-electric submarines operating on battery power,” id. at 14. On the other side of the equation, “the most serious possible injury [to plaintiffs] would be harm to an unknown number of marine mammals.” Id. at 26.
The balance of interests does not so starkly favor the Federal Defendants here. Although they allege that the injunction “frustrates the government’s ability to stop the flow of drugs across the border,” unlike the government in Winter, the Federal Defendants have failed to demonstrate that construction of the border wall would serve this purpose, or alternatively, that an injunction would inhibit this purpose. The Federal Defendants cite drug trafficking statistics, but fail to address how the construction of additional physical barriers would further the interdiction of drugs. The Executive Branch’s failure to show, in concrete terms, that the public interest favors a border wall is particularly significant given that Congress determined fencing to be a lower budgetary priority and the Department of Justice’s own data points to a contrary conclusion.16 The district court properly accorded this interest little weight.17 Therefore, we hold that the district court did not abuse its discretion, and we affirm the grant of the permanent injunction.
VII
In sum, we affirm the district court. We conclude that Sierra Club and SBCC have Article III standing to file their claims, that the Federal Defendants violated Section 8005 in transferring DoD appropriations to fund the El Paso, Yuma, El Centro, and Tucson Sectors of the proposed border wall, and that Sierra Club and SBCC have a constitutional cause of action under the Appropriations Clause and an ultra vires cause of action to challenge the Section 8005 transfers. We also decline to reverse the district court’s decision to impose a permanent injunction. Given our resolution of this case founded upon the violations of Section 8005, we need not—and do not—reach the merits of any other theory asserted by Sierra Club, nor reach any other issues presented by the parties.
AFFIRMED.
This case involves similar claims to those presented in California v. Trump, Nos. 19-16299 & 19-16336, ___ F.3d ___ (9th Cir. 2020). In each case, a distinct group of plaintiffs brought suit challenging the Acting Secretary of Defense’s invocation of § 8005 and § 9002 of the Department of Defense Appropriations Act, 2019 (“DoD Appropriations Act“),
I
The parties’ dispute over DoD’s funding transfers comes to us against the backdrop of a complex statutory framework and an equally complicated procedural history. Before turning to the merits, I will briefly review both that framework and that history.
A
Upon request from another federal department, the Secretary of Defense is authorized to “provide support for the counterdrug activities” of that department by undertaking the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
On March 25, 2019, the Acting Defense Secretary invoked § 284 and approved the provision of support for DHS’s “El Paso Sector Project 1” (which would involve DoD construction of border fencing, roads, and lighting in Luna and Doña Ana Counties in New Mexico), as well as for, inter alia, DHS’s “Yuma Sector Project 1” (which would involve DoD construction of similar border infrastructure in Yuma County, Arizona). Thereafter, the Secretary of Homeland Security invoked his authority under § 102(c) of IIRIRA to waive a variety of federal environmental statutes with respect to the planned construction of border infrastructure in the relevant portions of the El Paso Sector and the Yuma Sector, as well as “all . . . state . . . laws, regulations, and legal requirements of, deriving from, or related to the subject of,” those federal laws. See 84 Fed. Reg. 17185, 17187 (Apr. 24, 2019); 84 Fed. Reg. 17187, 17188 (Apr. 24, 2019).
Subsequently, on May 9, 2019, the Acting Defense Secretary again invoked § 284, this time to approve DoD’s construction of similar border infrastructure to support DHS’s “El Centro Sector Project 1” in Imperial County, California, and DHS’s “Tucson Sector Projects 1, 2, and 3” in Pima and Cochise Counties in Arizona. Less than a week later, the Secretary of Homeland Security again invoked his authority under IIRIRA § 102(c) to waive federal and state environmental laws, this time with respect to the construction in the relevant sections of the El Centro Sector and the Tucson Sector. See 84 Fed. Reg. 21800, 21801 (May 15, 2019); 84 Fed. Reg. 21798, 21799 (May 15, 2019).
Although § 284 authorized the Acting Defense Secretary to provide this support, there were insufficient funds in the relevant DoD appropriation to do so. Specifically, for Fiscal Year 2019, Congress had appropriated for “Drug Interdiction and Counter-Drug Activities, Defense” a total of only $670,271,000 that could be used for counter-drug support. See DoD Appropriations Act, Title VI, 132 Stat. at 2997 (appropriating, under Title governing “Other Department of Defense Programs,” a total of “$881,525,000, of which $517,171,000 shall be for counter-narcotics support“); id., Title IX, 132 Stat. at 3042 (appropriating $153,100,000 under the Title governing “Overseas Contingency Operations“). Accordingly, to support the El Paso Sector Project 1 and Yuma Sector Project 1, the Acting Secretary on March 25, 2019 invoked his authority to transfer appropriations under § 8005 of the DoD Appropriations Act and ordered the transfer of $1 billion from “excess Army military personnel funds” into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. That transfer was accomplished by moving $993,627,000 from the “Military Personnel, Army” appropriation and $6,373,000 from the “Reserve Personnel, Army” appropriation.
To support the El Centro Sector Project 1 and Tucson Sector Projects 1, 2, and 3, the Acting Secretary on May 9, 2019 again invoked his transfer authority to move an additional $1.5 billion into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriation. Pursuant to § 8005 of the DoD Appropriations Act, DoD transferred a total of $818,465,000 from 12 different DoD appropriations into the “Drug Interdiction and Counter-Drug
B
The complex procedural context of this case involves two parallel lawsuits and four appeals to this court, and it has already produced one published Ninth Circuit opinion that was promptly displaced by the Supreme Court.
1
The Organizations filed this action in the district court against the Acting Defense Secretary, DoD, and a variety of other federal officers and agencies. In their March 18, 2019 First Amended Complaint, they sought to challenge, inter alia, any transfer of funds by the Acting Secretary under § 8005 or § 9002. California and New Mexico, joined by several other States, filed a similar action, and their March 13, 2019 First Amended Complaint also sought to challenge any such transfers. Both sets of plaintiffs moved for preliminary injunctions in early April 2019. The portion of the States’ motion that was directed at the § 8005 transfers was asserted only on behalf of New Mexico and only with respect to the construction on New Mexico’s border (i.e., El Paso Sector Project 1). The Organizations’ motion was likewise directed at El Paso Sector Project 1, but it also challenged Yuma Sector Projects 1 and one other project (“Yuma Sector Project 2“).
After concluding that the Organizations were likely to prevail on their claims that the transfers under § 8005 were unlawful and that these organizational plaintiffs had demonstrated a “likelihood of irreparable harm to their members’ aesthetic and recreational interests,” the district court on May 24, 2019 granted a preliminary injunction enjoining Defendants from using transferred funds for “Yuma Sector Project 1 and El Paso Sector Project 1.”2 In a companion order, however, the district court denied preliminary injunctive relief to the States. Although the court held that New Mexico was likely to succeed on its claim that the transfers under § 8005 were unlawful, the court concluded that, in light of the grant of a preliminary injunction against El Paso Sector Project 1 to the Organizations, New Mexico would not suffer irreparable harm from the denial of its duplicative request for such relief. On May 29, 2019, Defendants appealed the preliminary injunction in favor of the Organizations, and after the district court refused to stay that injunction, Defendants moved in this court for an emergency stay on June 3, 2019. New Mexico did not appeal the district court’s denial of its duplicative request for a preliminary injunction.
2
While the Defendants’ emergency stay request was being briefed and considered in this court, the Organizations moved for partial summary judgment on June 12, 2019. The motion was limited to the issue of whether the transfers under § 8005 and § 9002 were lawful, and it requested corresponding declaratory relief, as well as a permanent injunction against the use of
On June 28, 2019, the district court granted partial summary judgment and declaratory relief to both sets of plaintiffs, concluding that the transfers under § 8005 and § 9002 were unlawful. The court granted permanent injunctive relief to the Organizations against all six projects, but it denied any such relief to California and New Mexico. The district court concluded that California and New Mexico had failed to prove a threat of future demonstrable environmental harm. The court expressed doubts about the States’ alternative theory that they had demonstrated injury to their sovereign interests, but the court ultimately concluded that it did not need to resolve that issue. As before, the district court instead held that California and New Mexico would not suffer any irreparable harm in light of the duplicative relief granted to the Organizations. The district court denied Defendants’ cross-motions for summary judgment in both cases. Invoking its authority under Federal Rule of Civil Procedure 54(b), the district court entered partial judgments in favor of, respectively, the Sierra Club and SBCC, and California and New Mexico. The district court denied Defendants’ request to stay the permanent injunction pending appeal.
3
On June 29, 2019, Defendants timely appealed in both cases and asked this court to stay the permanent injunction based on the same briefing and argument that had been presented in the preliminary injunction appeal. California and New Mexico timely cross-appealed nine days later. On July 3, 2019, this court consolidated Defendants’ appeal of the judgment and permanent injunction with Defendants’ pending appeal of the preliminary injunction.3 That same day, a motions panel of this court issued a 2–1 published decision denying Defendants’ motion for a stay of the permanent injunction (which had overtaken the preliminary injunction). See Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019).
Defendants then applied to the Supreme Court for a stay of the permanent injunction pending appeal, which the Court granted on July 26, 2019. See Trump v. Sierra Club, 140 S. Ct. 1 (2019). That stay remains in effect “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” Id. at 1. In granting the stay, the Court concluded that “the Government has made a sufficient showing at this stage that [the Sierra Club and SBCC] have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id.
II
Defendants have not contested the Article III standing of the Sierra Club and SBCC on appeal, but as the majority notes, “‘the court has an independent obligation to assure that standing exists, regardless
In reviewing standing sua sponte in the context of cross-motions for summary judgment, it is appropriate to apply the more lenient standard that takes the plaintiffs’ evidence as true and then asks whether a reasonable trier of fact could find Article III standing. Lujan v. Defenders, 504 U.S. at 563 (applying this standard in evaluating whether Government’s cross-motion for summary judgment should have been granted). In their briefs below concerning the parties’ cross-motions, the Sierra Club and SBCC each asserted that Defendants’ allegedly unlawful conduct caused harm to their members’ recreational, aesthetic, and environmental interests. Accepting the Organizations’ evidence as true, and drawing all reasonable inferences in their favor, a reasonable trier of fact could conclude that at least the Sierra Club has associational standing under Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333 (1977).4 Under the Hunt test, an association has standing if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343. The Sierra Club has presented sufficient evidence as to each of these three requirements.
To establish that its members would suffer irreparable harm absent a permanent injunction, the Sierra Club presented declarations from members who regularly visit the respective project areas. These members described how the construction and the resulting border barriers would interfere with their enjoyment of the surrounding landscape and would impede their ability to fish, to hunt, to monitor and document wildlife and vegetation for educational purposes, and to participate in other activities near the project sites. These injuries to the members’ recreational, aesthetic, and environmental interests are sufficient to constitute an injury-in-fact for Article III purposes. See Lujan v. Defenders, 504 U.S. at 562–63 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.“). Moreover, these injuries are fairly traceable to the construction, and an injunction blocking the transfers would redress those injuries
The other Hunt requirements are also satisfied. These members’ interests are clearly germane to the Sierra Club’s mission to protect the natural environment and local wildlife and plant life. And in seeking declaratory and injunctive relief, the lawsuit does not require the participation of individual members. See Hunt, 432 U.S. at 343.
Because the Sierra Club satisfies the applicable standing requirements as to all of the challenged projects, we may proceed to the merits without having to address SBCC’s standing. See Secretary of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly does have standing, we need not address the standing of the other [plaintiffs], whose position here is identical to the State’s.“). And given my view that the Organizations’ legal challenges fail, I perceive no obstacle to entering judgment against both the Sierra Club and SBCC without determining whether the latter has standing. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 98 (1998).
III
After examining the Article III standing of the Organizations, the majority then proceeds straight to the merits of whether the transfers were unlawful. See Maj. Opin. at 23. But we ought not address that issue unless we have first determined that the Organizations have asserted a viable cause of action that properly brings that issue before us. See Air Courier Conf. v. American Postal Workers Union AFL-CIO, 498 U.S. 517, 530–31 (1991). The majority belatedly gets to that question in Section V of its opinion, holding that the Organizations have two viable causes of action: an equitable cause of action under the Constitution and an ultra vires cause of action. See Maj. Opin. at 25. I disagree with that conclusion, and I also disagree with the Organizations’ alternative argument that they have a valid cause of action under the Administrative Procedure Act (“APA“). See Trump v. Sierra Club, 140 S. Ct. at 1 (“[T]he 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 Section 8005.“).5
Although the Organizations invoke the APA only as a fallback to their preferred non-statutory claims, I think it is appropriate to first consider whether they have a statutory cause of action under the APA. Cf. Chamber of Commerce v. Reich, 74 F.3d 1322, 1326–27 (D.C. Cir. 1996) (suggesting that, if a plaintiff relies on both the APA and non-statutory-review claims, the APA claim should be considered first). Even assuming arguendo that the APA does not displace reliance upon alternative non-statutory causes of action, see infra at 69, the contours of any express cause of action under the APA certainly provide appropriate context for the consideration of any non-statutory claim.
In authorizing suit by any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute,”
1
In applying the zone-of-interests test, we must first identify the “statutory provision whose violation forms the legal basis for [the] complaint” or the “gravamen of the complaint.” Lujan v. NWF, 497 U.S. at 883, 886; see also Air Courier Conf., 498 U.S. at 529. That question is easy here. The Organizations’ complaint alleges that the challenged transfers are not authorized by § 8005 and
and “Congress has denied funding for Defendants’ planned wall construction, thus barring the Department of Defense from using transfers to fund it.”7 The Organizations allege that, because Congress thus “has not authorized the Department of Defense to transfer additional Defense funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of supporting another agency, rather than for military requirements,” the Appropriations Clause bars the transfers and “Defendants are acting ultra vires in seeking to transfer funds into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent border wall.” Given that the case turns on whether the transfers met the criteria in
Although the Organizations invoke the Appropriations Clause and the constitutional separation of powers in contending that Defendants’ actions are unlawful, any such constitutional violations here can be said to have occurred only if the transfers violated the limitations set forth in
Having identified the relevant statute, our next task is to “discern the interests arguably to be protected by the statutory provision at issue” and then to “inquire whether the plaintiff‘s interests affected by the agency action in question are among them.” National Credit Union Admin. v. First Nat‘l Bank & Trust Co. (NCUA), 522 U.S. 479, 492 (1998) (simplified). Identifying the interests protected by
Section 8005 is a grant of general transfer authority that allows the Secretary of Defense, if he determines “that such action is necessary in the national interest” and if the Office of Management and Budget approves, to transfer from one DoD “appropriation” into another up to $4 billion of the funds that have been appropriated under the DoD Appropriations Act “for military functions (except military construction).” See 132 Stat. at 2999. Section 8005 contains five provisos that further regulate this transfer authority, and the only limitations on the Secretary‘s authority that the Organizations claim were violated here are all contained in the first such proviso. That proviso states that “such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Id.10 The remaining provisos require prompt notice to Congress “of all transfers made pursuant to this authority or any other authority in this Act“; proscribe the use of funds to make requests to the Committees on Appropriations for reprogrammings that are inconsistent with the restrictions described in the first proviso; set a time limit for making requests for multiple reprogrammings; and exempt “transfers among military personnel appropriations” from counting towards the $4 billion limit. Id.
Focusing on “the particular provision of law upon which the plaintiff relies,” Bennett, 520 U.S. at 175-76, makes clear that
In addition to preserving congressional control over DoD‘s appropriations,
In light of these features of
Moreover, focusing on the specific interests for which the Organizations have presented sufficient evidentiary support at the summary-judgment stage, see Lujan v. NWF, 497 U.S. at 884-85, further confirms that, in deciding whether to redirect excess military personnel funds under
3
The Organizations nonetheless claim that they fall within § 8005‘s zone of interests because
The critical flaw in the Organizations’ analysis is that it rests, not on the interests they are asserting (preservation of landscape, flora, fauna, etc.), but on the legal theory that the Organizations invoke to protect those interests here. But the zone-of-interests test focuses on the former and not the latter. See Lujan v. NWF, 497 U.S. at 885-89. Indeed, if the Organizations were correct, that would effectively eliminate the zone-of-interests test. By definition, anyone who alleges a violation of a particular statute has thereby invoked a legal theory that does not “meaningfully diverge” from the interests of those other persons or entities who are within that statute‘s zone-of-interests. Such a tautological congruence between the Organizations’ legal theory and Congress‘s institutional interests is not sufficient to satisfy the zone-of-interests test here.
The Organizations suggest that their approach is supported by the D.C. Circuit‘s decision in Scheduled Airlines Traffic Offices, Inc. v. Department of Defense, 87 F.3d 1356 (D.C. Cir. 1996), but that is wrong. As the opinion in that case makes clear, the D.C. Circuit was relying on the same traditional zone-of-interests test, under which a plaintiff‘s interests are “outside the statute‘s ‘zone of interests’ only ‘if the plaintiff‘s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.‘” 87 F.3d at 1360 (quoting Clarke, 479 U.S. at 399). The court mentioned “congruence” in the course of explaining why the plaintiff‘s interests in that case were “not more likely to frustrate than to further statutory objectives,” i.e., why those interests were not inconsistent with the purposes implicit in the statute. Id. (simplified). It did not thereby suggest—and could not properly have suggested—that the mere lack of any such inconsistency is alone sufficient under the zone-of-interests test. Here, the problem is not that the Organizations’ interests are inconsistent with the purposes of
The Organizations also suggest that we must apply the zone-of-interests test broadly here, because—given Congress‘s inability to enforce the limitations of
B
As noted earlier, the Organizations only invoke the APA as a fallback option, and they instead insist that they may assert claims under the Constitution, as well as an equitable cause of action to enjoin “ultra vires” conduct. The Organizations do not have a cause of action under either of these theories.
1
The Organizations contend that they are not required to satisfy any zone-of-interests test to the extent that they assert non-APA causes of action to enjoin Executive officials from taking unconstitutional action.12 Even assuming that an equitable cause of action to enjoin unconstitutional conduct exists alongside the APA‘s cause of action, see Juliana v. United States, 947 F.3d 1159, 1167-68 (9th Cir. 2020); Navajo Nation v. Department of the Interior, 876 F.3d 1144, 1172 (9th Cir. 2017); but see Sierra Club v. Trump, 929 F.3d at 715-17 (N.R. Smith, J., dissenting), it avails the Organizations nothing here. The Organizations have failed to allege the sort of constitutional claim that might give rise to such an equitable action, because their “constitutional” claim is effectively the very same § 8005-based claim dressed up in constitutional garb. And even if this claim counted as a “constitutional” one, it would still be governed by the same zone of interests defined by the relevant limitations in
a
The Organizations assert three constitutional claims in their operative complaint: (1) that Defendants have violated the constitutional separation of powers by “usurp[ing] Congress‘s legislative authority“; (2) that Defendants have violated the Presentment Clause by “modify[ing] or repeal[ing] Congress‘s appropriations legislation by executive proclamation, rather than by law“; and (3) that Defendants have violated the Appropriations Clause by “allocat[ing] money from the Department of the Treasury by executive proclamation, rather than by law, and in contravention of restrictions contained in Congress‘s appropriations’ laws.”
As clarified in their subsequent briefing, the Organizations assert both what I will call a “strong” form of these constitutional arguments and a more “limited” form. In its strong form, the Organizations’ argument is that, even if
I need not address whether the Organizations have an equitable cause of action to assert the strong form of their constitutional argument, because in my view that argument on the merits is so “wholly insubstantial and frivolous” that it would not even give rise to federal jurisdiction. Bell v. Hood, 327 U.S. 678, 682-83 (1946); see also Steel Co., 523 U.S. at 89. If
That leaves only the more limited form of the Organizations’ argument, which is that, if
In Dalton, the Court addressed a non-APA claim to enjoin Executive officials from implementing an allegedly unconstitutional Presidential decision to close certain military bases under the Defense Base Closure and Realignment Act of 1990. 511 U.S. at 471.14 But the claim in Dalton was not that the President had directly transgressed an applicable constitutional limitation; rather, the claim was that, because Executive officials “violated the procedural requirements” of the statute on which the President‘s decision ultimately rested, the President thereby “act[ed] in excess of his statutory authority” and therefore “violate[d] the constitutional separation-of-powers doctrine.” Id. at 471-72. The Supreme Court rejected this effort to “eviscerat[e]” the well-established “distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution,
Under Dalton, the Organizations’ purported “constitutional” claims—at least in their more limited version—are properly classified as statutory claims that do not fall within any non-APA cause of action to enjoin unconstitutional conduct. 511 U.S. at 474. Here, as in Dalton, Defendants have “claimed” the “statutory authority” of
b
But even if the Organizations’ claims may properly be classified as constitutional ones for purposes of the particular equitable cause of action they invoke here, those claims would still fail.
To the extent that the Organizations argue that the Constitution itself grants a cause of action allowing any plaintiff with an Article III injury to sue to enjoin an alleged violation of the Appropriations Clause, the Presentment Clause, or the separation of powers, there is no support for such a theory. None of the cases cited by the Organizations involved putative plaintiffs, such as the Organizations here, who are near the outer perimeter of Article III standing. On the contrary, these cases involved either allegedly unconstitutional agency actions directly targeting the claimants, see Bond v. United States, 564 U.S. 211, 225-26 (2011) (criminal defendant challenged statute under which she was convicted on federalism and separation-of-powers grounds); United States v. McIntosh, 833 F.3d 1163, 1174-75 (9th Cir. 2016) (criminal defendants sought to enjoin, based on an appropriations rider and
Moreover, the majority‘s novel contention that the Constitution requires recognizing, in this context, an equitable cause of action that extends to the outer limits of Article III cannot be squared with the Supreme Court‘s decision in Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015). There, the Court rejected the view that the Supremacy Clause itself created a private right of action for equitable relief against preempted statutes, and instead held that any such equitable claim rested on “judge-made” remedies that are subject to “express and implied statutory limitations.” Id. at 325-27. The Supremacy Clause provides a particularly apt analogy here, because (like the Appropriations Clause) the asserted “unconstitutionality” of the challenged action generally depends upon whether it falls within or outside the terms of a federal statute: a state statute is “unconstitutional under the Supremacy Clause” only if it is “contrary to federal law,” Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1361-62 (9th Cir. 1998), and here, the transfers violated the Appropriations Clause only if they were barred by the limitations in
The Appropriations Clause thus does not itself create a constitutionally required cause of action that extends to the limits of Article III. On the contrary, any equitable cause of action to enforce that clause would rest on a “judge-made” remedy: as Armstrong observed, “[t]he 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.” 575 U.S. at 327. At least where, as here, the contours of the applicable constitutional line (under the Appropriations Clause) are defined by and parallel a statutory line (under
One long-established “‘judicially self-imposed limit[] on the exercise of federal jurisdiction‘“—including federal equitable jurisdiction—is the requirement “that a plaintiff‘s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett, 520 U.S. at 162 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). This limitation is not confined to the APA, but rather reflects a “prudential standing requirement[] of general application” that always “applies unless it is expressly negated” by Congress. Id. at 163.16 Because Congress has not expressly negated that test in any relevant respect, the Organizations’ equitable cause of action to enforce the Appropriations Clause here remains subject to the zone-of-interests test. Cf. Thompson v. North American Stainless, LP, 562 U.S. 170, 176-77 (2011) (construing a cause of action as extending to “any person injured in the Article III sense” would often produce “absurd consequences” and is for that reason rarely done). And given the unique nature of an Appropriations Clause claim, as just discussed, the line between constitutional and unconstitutional conduct here is defined entirely by the limitations in § 8005, and therefore the relevant zone of interests for the Organizations’ Appropriations-Clause-based equitable claim remains defined by those limitations. Thus, contrary to the majority‘s conclusion, see Maj. Opin. at 39-40, the Organizations are outside the applicable zone of interests for this claim as well.
In arguing for a contrary view, the Organizations rely heavily on United States v. McIntosh, asserting that there we granted non-APA injunctive relief based on the Appropriations Clause without inquiring whether the claimants were within the zone of interests of the underlying appropriations statute. McIntosh cannot bear the considerable weight that the Organizations place on it.
In McIntosh, we asserted interlocutory jurisdiction over the district courts’ refusal to enjoin the expenditure of funds to prosecute the defendants—an expenditure that allegedly violated an appropriations rider barring the Justice Department from spending funds to prevent certain States from “‘implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.‘” 833 F.3d at 1175; see also id. at 1172-73. We held that the defendants had Article III standing and that, if the Department was in fact “spending money in violation” of that rider in prosecuting the defendants, that would produce a violation of the Appropriations Clause that could be raised by the defendants in challenging their prosecutions. Id. at 1175. After construing the meaning of the rider, we then remanded
2
The only remaining question is whether the Organizations may evade the APA‘s zone-of-interests test by asserting a non-APA claim for ultra vires conduct in excess of statutory authority. Even assuming that such a cause of action exists alongside the APA, cf. Trudeau v. Federal Trade Comm‘n, 456 F.3d 178, 189-90 (D.C. Cir. 2006), I conclude that it would be subject to the same zone-of-interests limitations as the Organizations’ APA claims and therefore likewise fails.
For the same reasons discussed above, any such equitable cause of action rests on a judge-made remedy that is subject to the zone-of-interests test. See supra at 74-79. The Organizations identify no case from the Supreme Court or this court affirmatively holding that the zone-of-interests test does not apply to a non-APA equitable cause of action to enjoin conduct allegedly in excess of express statutory limitations on statutory authority, and I am aware of none. Indeed, it makes little sense, when evaluating a claim that Executive officials exceeded the limitations in a federal statute, not to ask whether the plaintiff is within the zone of interests protected by those statutory limitations. Cf. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (although plaintiff asserting ultra vires claim may not need to show that its interests “fall within the zones of interests of the constitutional and statutory powers invoked” by Executive officials, when “a particular constitutional or statutory provision was intended to protect persons like the litigant by limiting the authority conferred,” then “the litigant‘s interest may be said to fall within the zone protected by the limitation“) (emphasis added).17 Here, those limitations are supplied by
* * *
IV
Alternatively, even if the Organizations had a cause of action, their claims would fail on the merits, because the challenged transfers did not violate
V
Based on the foregoing, I conclude that at least the Sierra Club has Article III standing, but that the Organizations lack any cause of action to challenge these