STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF HAWAII; STATE OF MAINE; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEVADA; STATE OF NEW YORK; STATE OF OREGON; COMMONWEALTH OF VIRGINIA; STATE OF ILLINOIS; STATE OF MARYLAND; DANA NESSEL, ATTORNEY GENERAL, ON BEHALF OF THE PEOPLE OF MICHIGAN; STATE OF WISCONSIN; STATE OF MASSACHUSETTS; STATE OF VERMONT; STATE OF RHODE ISLAND v. DONALD J. TRUMP, in his official capacity as President of the United States of America; UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF DEFENSE; MARK T. ESPER, in his official capacity as Acting Secretary of Defense; RYAN D. MCCARTHY, senior official performing the duties of the Secretary of the Army; RICHARD V. SPENCER, in his official capacity as Secretary of the Navy; HEATHER WILSON, in her official capacity as Secretary of the Air Force; UNITED STATES DEPARTMENT OF THE TREASURY; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the Department of the Treasury; U.S. DEPARTMENT OF THE INTERIOR; DAVID BERNHARDT, in his official capacity as Secretary of the Interior; U.S. DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security
No. 19-16299, No. 19-16336
United States Court of Appeals for the Ninth Circuit
June 26, 2020
D.C. No. 4:19-cv-00872-HSG
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OPINION
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
Filed June 26, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges.
Dissent by Judge Collins
SUMMARY*
Appropriations
The panel affirmed the district court‘s judgment holding that budgetary transfers of funds for the construction of a wall on the southern border of the United States in California and New Mexico were not authorized under the
Section 8005 and Section 9002 of the Act (collectively “Section 8005“) was invoked to transfer $2.5 billion of Department of Defense funds appropriated for other purposes to fund border wall construction. Sixteen states, including California and New Mexico, filed suit challenging the Executive Branch‘s funding of the border wall. The district court granted California and New Mexico‘s motion for partial summary judgment, and issued declaratory relief, holding the Section 8005 transfer of funds as to the El Centro and El Paso sectors unlawful.
The panel held that California and New Mexico established the requisite Article III standing to challenge the federal defendants’ actions.
Concerning the injury in fact element of standing, the panel held that California and New Mexico alleged that the actions of the federal defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as to their sovereign interests in enforcing their environmental laws. First, the panel held that California and New Mexico each provided sufficient evidence, if taken as true, that would allow a reasonable fact-finder to conclude that both states would suffer injuries in fact to their environmental interests, and in particular, to protect endangered species within their borders. Second, the panel also held that California and New Mexico demonstrated that border wall construction injured their quasi-sovereign interests by preventing them from enforcing their environmental laws.
Concerning the causation element for standing, the panel held that California alleged environmental and sovereign injuries that were fairly traceable to the federal defendants’ conduct. The panel held that with respect to most of the environmental injuries, causation was apparent. The panel also concluded that the causation requirement was likewise satisfied for the injuries to California‘s and New Mexico‘s quasi-sovereign interests.
Concerning the redressability element of standing, the panel held that a ruling in California and New Mexico‘s favor would redress their harms. Without the Section 8005 funds, the Department of Defense would have inadequate funding to finance construction of the projects, and this would prevent both the alleged and environmental and sovereign injuries.
The panel held that California and New Mexico had the right to challenge the transfer of funds under the
The panel held that Section 8005 did not authorize the Department of Defense‘s budgetary transfer to fund construction of the El Paso and El Centro Sectors. Specifically, the panel concluded that the district court correctly determined that the border wall was not an unforeseen military requirement, and that funding for the wall had been denied by Congress. Absent such statutory authority, the Executive Branch lacked independent constitutional authority to transfer the funds at issue here. The panel concluded that the transfer of funds was unlawful, and affirmed the district court‘s declaratory judgment to California and New Mexico.
Finally, the panel declined to reverse the district court‘s denial of California and New Mexico‘s request for permanent injunctive relief, without prejudice to renewal.
Judge Collins dissented. He agreed that at least California established Article III standing, but would hold that the States lacked any cause of action to challenge the transfer of funds under the
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/Cross-Appellees.
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:
This appeal presents the question of whether the
I
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.2 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
The President concurrently issued a proclamation under the
Because these projects were undertaken to construct barriers and roads in furtherance of border security, Acting Secretary of Homeland Security Kevin McAleenan invoked the authority granted to him by Section 102(c) of the
At the time Shanahan authorized 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
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 specifically relied on Section 8005 and Section 9002 of the
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
Section 8005 also explicitly limits when its authority can be invoked: ”Provided, 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.”
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 18, 2019, sixteen states,7 including California and New Mexico, filed a lawsuit challenging the Executive Branch‘s funding of the border wall. The States pled theories of violation of the constitutional separation of powers, violation of the Appropriations Clause, ultra vires action, violations of the
California and New Mexico then moved for partial summary judgment on their declaratory judgment action as to the El Centro and El Paso Sectors, and additionally moved for a permanent injunction to enjoin funding the construction of these sectors. The Federal Defendants filed a cross-motion for summary judgment on all claims. The district court granted California and New Mexico‘s motion for partial summary judgment, and issued declaratory relief, holding the Section 8005 transfer of funds as to the El Centro and El Paso sectors unlawful. The district court denied the Federal Defendants’ motion for summary judgment.
The court also denied California and New Mexico‘s motion for a permanent injunction, this time basing its reasoning, in part, on the permanent injunction ordered by the district court in the companion Sierra Club case.9
The Federal Defendants requested that the district court certify its order as a final judgment for immediate appeal pursuant to
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
California and New Mexico have Article III standing to pursue their claims. In order 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).10 At summary
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) (internal quotations and citations omitted). These specific facts, set forth “for purposes of the summary judgment motion[,] will be taken to be true.” Lujan, 504 U.S. at 561.
States are “entitled to special solicitude in our standing analysis.” Massachusetts v. EPA, 549 U.S. 497, 520 (2007). As a quasi-sovereign, a state “has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907). Thus, a state may sue to assert its “quasi-sovereign interests in the health and well-being—both physical and economic—of its residents in general.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982). In addition, “[d]istinct from but related to the general well-being of its residents, the State has an interest in securing observance of the terms under which it participates in the federal system.” Id. at 607-08.
A
Here, California and New Mexico have alleged that the actions of the Federal Defendants will cause particularized and concrete injuries in fact to the environment and wildlife
of their respective states as well as to their sovereign interests in enforcing their environmental laws.
1
The El Centro Sector Project 1 involves the Jacumba Wilderness area. California contends that this area is home to a large number of sensitive plant and animal species that are listed as “endangered,” “threatened,” or “rare” under the federal
Likewise, California asserts that the flat-tailed horned lizard lives within the project footprint and surrounding area, and that the extensive trenching, construction of roads, and staging of materials proposed in the area will harm or kill lizards that are either active or in underground burrows within the project footprint. It claims that the construction of the border wall will also greatly increase the predation rate of lizards adjacent to the wall by providing a perch for birds of prey and will effectively sever the linkage that currently exists between populations on both sides of the border.
New Mexico alleges that “[t]he construction of a border wall in the El Paso Sector along New Mexico‘s southern border will have adverse effects on the State‘s environmental resources, including direct and indirect impacts to endangered or threatened wildlife.” Such harm “would include the blocking of wildlife migration, flooding, and habitat loss.” It notes that the Chihuahuan desert is bisected by the New Mexico-Mexico border, and this “bootheel” region is the most biologically diverse desert in the Western Hemisphere, containing numerous endangered or threatened species. Such species include the Mexican gray wolf and the jaguar, both of which coexist in this region along the U.S.-Mexico border.
New Mexico has adequately set forth facts and other evidence, which taken as true, support these allegations for the purpose of Article III standing. It contends that the construction of El Paso Sector Project 1 may have a number of adverse effects on the Mexican wolf, including injury, death, harm, and harassment due to construction and related activities, as well as abandonment of the area for essential behaviors such as feeding, resting, and mating due to night lighting and the elimination of food sources and habitat in the area. Moreover, New Mexico avers that the construction of El Paso Sector Project 1 would interrupt the movement of the Mexican wolf across the U.S.-Mexico border, putting additional pressure on the species’ survival and recovery in the wild because the unimpeded movement of Mexican wolves between the United States and
Additionally, the jaguar is considered endangered by the U.S. Fish and Wildlife Service (“USFWS“). New Mexico avers that jaguars were formerly widespread in the southwest United States, but were extirpated by hunting. It claims that, in recent decades, small numbers of individuals have dispersed north from breeding populations in northern Mexico, with some reaching the mountains in southwestern New Mexico west of Luna County. New Mexico contends that, if further long-term recolonization of jaguars continues, areas in Doña Ana and Luna counties include suitable habitat, but construction of El Paso Sector Project 1 would stop jaguar movement through the region, potentially limiting recolonization.
For these reasons, we conclude that California and New Mexico have each provided sufficient evidence which, if taken as true, would allow a reasonable fact-finder to conclude that both states will suffer injuries in fact to their environmental interests, and in particular, to protected species within their borders.
2
In addition, California and New Mexico have alleged that the Federal Defendants’ actions have interfered with their respective abilities to enforce their environmental laws, thus interfering with the terms under which they participate in the federal system. They alleged that they have suffered, and will continue to suffer, injuries to their concrete, quasi-sovereign interests relating to the preservation of wildlife resources within their boundaries, including but not limited to wildlife on state properties.
California and New Mexico have adequately set forth facts and other evidence, which taken as true, support these allegations for the purpose of Article III standing. They have demonstrated that border wall construction injures their quasi-sovereign interests by preventing them from enforcing their environmental laws.
Under California law, the California Water Resources Control Board and nine regional boards establish water quality objectives and standards, and for construction projects like El Centro Sector Project 1, where dredge and fill activities are expected to occur, a regional board must ordinarily certify compliance with water quality standards. The record indicates that, absent the Secretary of Homeland Security‘s Section 102(c) IIRIRA waiver of the Clean Water Act requirements for the project, El Centro Project 1 could not proceed without completing certification issued by a regional water board because the El Centro Project 1 will occur within or near the Pinto Wash and will traverse at least six ephemeral washes that have been identified as waters of the United States. The record further indicates that, due to the nature and location of construction, El Centro Project 1 would also require enrollment in the State Water Board‘s statewide National Pollutant Discharge Elimination General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities.
Likewise, the Section 102(c) waiver of the
Moreover, the Section 102(c) waiver exempts the Federal Defendants from complying with laws designed to protect endangered or threatened species. For instance, it exempts the Federal Defendants from consulting with the USFWS to ensure that El Centro Sector Project 1 “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species” that are identified as endangered under California and federal law.
Under New Mexico law, the Federal Defendants, absent the Section 102(c) waiver of the
New Mexico further contends that, absent the Section 102(c) waiver, the Federal Defendants would also normally be required to consult with the USFWS to protect species such as the Mexican wolf that are endangered under both federal and New Mexico Law. Moreover, the USFWS‘s management plan for the species—the “Mexican Wolf Recovery Plan-First Revision“—which is designed to “facilitate the wolf‘s revival,” “calls for a minimum of 320 wolves in the United States and 200 in Mexico to meet recovery goals.” The “binational recovery strategy” of this plan was developed by the USFWS “in coordination with federal agencies in Mexico and state, federal, and Tribal agencies in the United States,” and “[e]ffective recovery requires participation by multiple parties within Federal, state, and local governments.” USFWS, MEXICAN WOLF RECOVERY PLAN-FIRST REVISION at 10, 16 (2017). Construction undermines this plan because it inhibits the “utilization of habitat” and does not promote “meta-population connectivity.”
The Section 102(c) waiver likewise prevents New Mexico from enforcing its Wildlife Corridors Act. Portions of El Paso Project 1 cross New Mexico State Trust
In sum, we conclude that California and New Mexico have each provided sufficient evidence which, if taken as true, would allow a reasonable fact-finder to conclude that they have both suffered injuries in fact to their sovereign interests.
B
Turning to the causation requirement, we conclude that California has alleged environmental and sovereign injuries “fairly traceable” to the Federal Defendants’ conduct. To satisfy this requirement, California and New Mexico “need not show that [Section 8005 is] ‘the very last step in the chain of causation.‘” Ass‘n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 953 (9th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)). “A causal chain does not fail simply because it has several ‘links,’ provided those links are ‘not hypothetical or tenuous’ and remain ‘plausib[le].‘” Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (quoting Nat‘l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)).
With respect to most of the environmental injuries, causation is apparent—for instance, as explained above, the construction and presence of the border wall will separate the peninsular bighorn sheep and Mexican wolf populations, decreasing biodiversity, and harming these species.
Although slightly more attenuated, we also conclude that the causation requirement is likewise satisfied for the injuries to California‘s and New Mexico‘s quasi-sovereign interests. It makes no difference that the Section 102(c) waiver is most directly responsible for these injuries because without Section 8005, there is no waiver. That is, without the Section 8005 funding to construct El Centro Sector Project 1 and El Paso Sector Project 1, there would be no basis to invoke Section 102(c), and therefore, no resulting harm to California‘s and New Mexico‘s sovereign interests. Thus, we conclude that these injuries too are fairly traceable to the Section 8005 transfers of funds.
C
A ruling in California and New Mexico‘s favor would redress their harms. Without the Section 8005 funds, DoD had inadequate funding to finance construction of these projects; presumably, without this funding, construction of El Centro Sector Project 1 and El Paso Sector Project 1 would cease. This would prevent both the environmental injuries and the sovereign injuries alleged.
Thus, these facts would allow a reasonable fact-finder to conclude that, if funds are diverted to construct border wall projects in the El Centro and El Paso Sectors, California and New Mexico will each suffer environmental and quasi-sovereign injuries in fact that are fairly traceable to the challenged conduct of the Federal Defendants and likely to be redressed by a favorable judicial decision. California and New Mexico have established the requisite Article III standing to challenge the Federal Defendants’ actions.
The Federal Defendants argue that California and New Mexico lack the right to challenge the transfer of funds under the APA. We disagree.12
The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.”
(“This Court has long held that a person suing under the APA must satisfy not only Article III‘s standing requirements, but an additional test: The interest he asserts must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he says was violated.” (quoting Ass‘n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153 (1970))).
Section 8005 does not confer a private right of action. Instead, it delegates a narrow slice of Congress‘s appropriation power to DoD to allow the agency to respond flexibly to unforeseen circumstances implicating the national interest. In doing so, the statute imposes certain obligations upon DoD—i.e., DoD cannot invoke Section 8005 unless there is an unforeseen military requirement and unless Congress did not previously deny the item requested. California and New Mexico argue that DoD did not satisfy these obligations. We agree. Therefore, as aggrieved parties, California and New Mexico may pursue a remedy under the APA, so long as they fall within Section 8005‘s zone of interests.
As a threshold matter, Section 8005 is the relevant statute for the zone of interests test. “Whether a plaintiff‘s interest is ‘arguably . . . protected . . . by the statute’ within the meaning of the zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question . . . but by reference to the particular provision of law upon which the plaintiff relies.” Bennett, 520 U.S. at 175-76 (emphasis added). Here, for purposes of their APA claim, California and New Mexico rely on Section 8005‘s limitations. Thus, Section 8005 is the relevant statute for the zone of interests test.
The Supreme Court has clarified that, in the APA context, the zone of interests test does “not require any ‘indication of congressional purpose to benefit the would-be plaintiff.‘” Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass‘n, 479 U.S. 388, 399-400 (1987)). It has repeatedly emphasized that the zone of interests test is “not ‘especially demanding‘” in the APA context. Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014) (quoting Patchak, 567 U.S. at 225). Instead, for APA challenges, a plaintiff can satisfy the test in either one of two ways: (1) “if it is among those [who] Congress expressly or directly indicated were the intended beneficiaries
In enacting Section 8005, Congress primarily intended to benefit itself and its constitutional power to manage appropriations. The obligations imposed by the section limit the scope of the authority delegated to DoD, reserving to Congress in most instances the power to appropriate funds to particular DoD accounts for specific purposes. This conclusion is reinforced by the legislative history. Congress first imposed limits on DoD‘s transfer authority in order to “tighten congressional control of the reprogramming process.” H.R. Rep. No. 93-662, at 16 (1973).
The field of suitable challengers must be construed broadly in this context because, although Section 8005‘s obligations were intended to protect Congress, restrictions on congressional standing make it difficult for Congress to enforce these obligations itself. See Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979), vacated and remanded on other grounds, 444 U.S. 996 (1979) (explaining that a member of Congress has standing only if “the alleged diminution in congressional influence . . . amount[s] to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity“). Indeed, the House of Representatives filed its own lawsuit in the U.S. District Court for the District of Columbia challenging this same transfer of funds, but the court held that the House lacked standing to sue. See U.S. House of Reps. v. Mnuchin, 379 F. Supp. 3d 8, 11 (D.D.C. 2019) (“And while the Constitution bestows upon Members of the House many powers, it does not grant them standing to hale the Executive Branch into court claiming a dilution of Congress‘s legislative authority.“).
California and New Mexico are suitable challengers because their interests are congruent with those of Congress and are not “inconsistent with the purposes implicit in the statute.” Patchak, 567 U.S. at 225. First, this challenge actively furthers Congress‘s intent to “tighten congressional control of the reprogramming process.” H.R. Rep. No. 93-662, at 16 (1973). In particular, this challenge furthers this intent because, even though Section 8005 does not require formal congressional approval to reprogram funds, the congressional committees expressly disapproved of DoD‘s use of the authority here.
Second, California and New Mexico‘s challenge strives to reinforce the same structural constitutional principle Congress sought to protect through Section 8005: congressional power over appropriations. See
Moreover, that the states regularly benefit from DoD‘s use of Section 8005 reinforces that California and New Mexico‘s interests are not “so marginally related” that “it can[] reasonably be assumed that Congress intended to permit suit.” Patchak, 567 U.S. at 225. For instance, in 2004 DoD invoked Section 8005 to transfer funds to pay for storm damages incurred by airforce bases across Florida during Hurricane Charley. Office of the Under Sec‘y of Def. (Comptroller), FY 04-37 PA, Reprogramming Action (2004). Likewise, in 2008 DoD invoked Section 8005 to finance costs incurred by the National Guard in responding to Hurricane
Gustav in Louisiana, Texas, Mississippi, and Alabama, as well as operations related to Hurricane Ike in Texas and Louisiana. Office of the Under Sec‘y of Def. (Comptroller), FY 08-43 PA, Reprogramming Action (2008). The historical use of Section 8005 supports that states are “reasonable” and “predictable” challengers to its use, and this instance is no anomaly. Patchak, 567 U.S. at 227.
V
The district court correctly held that Section 8005 did not authorize DoD‘s budgetary transfer to fund construction of the El Paso and El Centro Sectors.
In construing a statute, we begin, as always, with the language of the statute. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1026 (9th Cir. 2013). “When terms are not defined within a statute, they are accorded their plain and ordinary meaning, which can be deduced through reference sources such as general usage dictionaries.” Id. Of course, “[s]tatutory language must always be read in its proper context,” id. (quotations and citation omitted), as courts must look to the “design of the statute as a whole and to its object and policy,” id. (quotations and citation omitted), and “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (quotations and citation omitted).
Section 8005‘s transfer authority cannot be invoked “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.” Two limitations are important to our analysis: (1) that the transfer must be “based on unforeseen military requirements,” and (2) that the transfer authority cannot be invoked if the “item for which funds are requested ha[d] been denied by the Congress.” We conclude that the district court correctly determined that the border wall was not an unforeseen military requirement, that funding for the wall had been denied by Congress, and therefore, that the transfer authority granted by Section 8005 was not permissibly invoked.
A
Section 8005 authorizes the transfer of funds only in response to an “unforeseen military requirement.” The district court properly concluded that the need for a border wall was not unforeseen. We also conclude that the need was unrelated to a military requirement.
1
Section 8005 does not define “unforeseen.” Therefore, we start by considering the ordinary meaning of the word. Something is unforeseen when it is “not anticipated or expected.” Unforeseen, MERRIAM-WEBSTER ONLINE DICTIONARY (2020). By contrast, to foresee is “to see (something, such as a development) beforehand.” Foresee, MERRIAM-WEBSTER ONLINE DICTIONARY (2020) (emphasis added). Prior use of this authority confirms this meaning. Previously, DoD has invoked its Section 8005 authority to transfer funds to repair hurricane and typhoon damage to military bases—natural disasters that inflict damage that may not be anticipated or expected ahead of time. We conclude that an unforeseen requirement is one that DoD did not anticipate or expect.
Neither the problem, nor the President‘s purported solution, was unanticipated or unexpected here. The smuggling of drugs
Congress‘s joint resolution terminating the President‘s declaration of a national emergency only reinforces this point: there was no unanticipated crisis at the border. Nothing prevented Congress from funding solutions to this problem through the ordinary appropriations process—Congress simply chose not to fund this particular solution.
The long, well-documented history of the President‘s efforts to build a border wall demonstrates that he considered the wall to be a priority from the earliest days of his campaign in 2015. See, e.g., Here‘s Donald Trump‘s Presidential Announcement Speech, TIME (June 16, 2015) (“I would build a great wall . . . I will build a great, great wall on our southern border.“); Transcript of Donald Trump‘s Immigration Speech, NEW YORK TIMES (Sept. 1, 2016) (“On day one, we will begin working on an impenetrable, physical, tall, power, beautiful southern border wall.“). Moreover, his repeated pronouncements on the subject made clear that federal agencies like DoD might be tasked with the wall‘s funding and construction. Congress‘s repeated denials of funding only drew national attention to the issue and put agencies on notice that they might be asked to finance construction. See Securing America‘s Future Act of 2018, H.R. 4760, 115th Cong. § 1111 (2018); Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th Cong. § 5101 (2018); American Border Act, H.R. 6415, 115th Cong. § 4101 (2018); Fund and Complete the Border Wall Act, H.R. 6657, 115th Cong. § 2 (2018); Build the Wall, Enforce the Law Act of 2018, H.R. 7059, 115th Cong. § 9 (2018); 50 Votes for the Wall Act, H.R. 7073, 115th Cong. § 2 (2018); WALL Act of 2018, S. 3713, 115th Cong. § 2 (2018). In short, neither the conditions at the border nor the President‘s position that a wall was needed to address those conditions was unanticipated or unexpected by DoD.
The Federal Defendants’ arguments to the contrary are unpersuasive. They assert that “an agency‘s request” “will be foreseen” only “when it is received by DoD in time to include in the submission to Congress [for the yearly budget],” and that therefore, the transfer at issue here complied with the text of the statute. (emphasis added). There are two problems with the Federal Defendants’ position.
First, Section 8005 permits transfers based only on unforeseen military requirements—not unforeseen budgetary requests. A requirement that gives rise to a funding request is distinct from the request itself. Here, the requirement that gave rise to the Section 284 requests is a border wall. Thus, to invoke the statute, the need for a border wall must have been unforeseen. To hold otherwise—i.e., to
Second, even if we were to accept the government‘s definition of “requirement” as equivalent to “request,” DHS‘s specific Section 284 requests were both anticipated and expected, even within the confines of the appropriations context. Nearly six months before the enactment of the 2019 DoD Appropriations Act, the President wrote the following in a memorandum to the Secretary of Defense, the Attorney
General, and the Secretary of Homeland Security: “The Secretary of Defense shall support the Department of Homeland Security in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband . . . into this country.” Further, in a response to a request for information from the House Armed Services Committee, DoD wrote that the “DoD Comptroller with[held] over 84% ($947 million) of [counter-drug] appropriated funds for distribution until the 4th Quarter for possible use in supporting Southwest Border construction last fiscal year.” As explained by the Staff Director of the House Armed Services Committee, this “suggests that DoD was considering using its counter-drug authority under
The Federal Defendants also unpersuasively equate “foreseen” with “known.” “[T]o know” means “to perceive directly: have direct cognition of.” Know, MERRIAM-WEBSTER ONLINE DICTIONARY (2020). This interpretation effectively eliminates any element of anticipation or expectation. “Congress’ choice of words is presumed to be deliberate’ and deserving of judicial respect.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)). Thus, we must presume that Congress‘s use of the word “unforeseen” is deliberate. Congress could have easily specified that a transfer is permitted only when based on “unknown” requirements, but it did not. Instead, Congress specified that
In sum, both the requirement to build a wall on the southern border as well as the DHS request to DoD to build that wall were anticipated and expected. Thus, neither was “unforeseen” within the meaning of
The 2019 Appropriations Act does not define “military.” Therefore, we start by considering its ordinary meaning: “of or relating to soldiers, arms, or war.” Military, MERRIAM-WEBSTER ONLINE DICTIONARY (2020). The border wall construction projects here plainly fail to satisfy this definition because the Federal Defendants have argued neither that the border wall construction projects are related to the use of soldiers or arms, nor that there is a war on the southern border.
The administrative record underscores this point, and supports that the border wall construction projects are not military ones. The record demonstrates that the diverted funding is primarily intended to support DHS-a civilian agency entirely separate from any branch of the armed forces. The Assistant Secretary of Defense stated that the funds were transferred “to provide assistance to DHS to construct fencing to block drug-smuggling corridors in three project areas along the southern border of the United States.” He also explained that the purpose of the transfer was to “support DHS‘s efforts to secure the southern border.” By contrast, the transfer of funds for border wall construction does little to assist DoD with any of its operations. Even to the extent it might, it does so only insofar as it helps DoD assist DHS: as summarized by the Chairman of the Joint Chiefs of Staff and DHS, border wall projects “allow DoD to provide support to DHS more efficiently and effectively.” (emphasis added). In short, the fact that construction is intended to support a civilian agency, as opposed to DoD itself or any branch of the armed forces, emphasizes that the transfer fails to meet the plain meaning of “military.”
The border wall construction projects do not even satisfy a statutory definition specifically invoked by the Federal Defendants. See also WILLIAM N. ESKRIDGE ET AL., LEGISLATION AND STATUTORY INTERPRETATION 273 (2d ed. 2006) (“A word or clause that is ambiguous at first glance might be clarified if ‘the same terminology is used elsewhere in a context that makes its meaning clear‘” and such coherence arguments may be invoked “across as well as within statutes” (quoting United Savings Ass‘n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988))).
The Federal Defendants have also invoked
Even if we were to afford some consideration to the subchapter title for
To conclude that supporting projects unconnected to any military purpose or installation satisfies the meaning of “military requirement” would effectively write the term out of
B
In addition,
As we have explained, Congress declined to fund the border wall numerous times in a variety of ways. Congress failed to pass seven different bills, see supra at 37-38,
The Federal Defendants assert that the
To hold that Congress did not previously deny the Executive Branch‘s request for funding to construct a border wall would be to “find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring). Regardless of how specific a denial may be in some circumstances, Congress‘s broad and resounding denial resulting in a 35-day partial government shutdown must constitute a previous denial for purposes of
C
In sum,
VI
Finally, we consider the district court‘s denial of California and New Mexico‘s request for injunctive relief, a decision we review for an abuse of discretion. See Midgett v. Tri-Cty. Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th Cir. 2001). The district court denied the States’ request for a permanent injunction primarily because the relief sought was duplicative of the relief the district court had already granted in the Sierra Club matter. That decision, which is the only one before us in this appeal, was certainly not an abuse of discretion. As we have noted, however, subsequent to the district court‘s decision, the Supreme Court stayed the Sierra Club permanent injunction. See Sierra Club, 140 S. Ct. at 1.
Nevertheless, given the totality of the considerations at issue in this case, we continue to see no abuse of discretion in the district court‘s order, even though at this moment, the injunction in Sierra Club no longer affords the States protection. We
VII
In sum, we affirm the district court. We conclude that California and New Mexico have Article III standing to file their claims, that California and New Mexico are sufficiently within
AFFIRMED.
COLLINS, Circuit Judge, dissenting:
In the judgment under review, the district court granted summary judgment and declaratory relief to California and New Mexico on their claims challenging the Acting Secretary of Defense‘s invocation of
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
Subsequently, on May 9, 2019, the Acting Defense Secretary again invoked
Although
To support the El Centro Sector Project 1, 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
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
California and New Mexico, joined by several other States, 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 13, 2019 First Amended Complaint, they sought to challenge, inter alia, any transfer of funds by the Acting Secretary under
After concluding that the Sierra Club and SBCC were likely to prevail on their claims that the transfers under
2
While the Defendants’ emergency stay request was being briefed and considered in this court, California and New Mexico (but not the other States) moved for partial summary judgment on June 12, 2019. The motion was limited to the issue of whether the transfers under
On June 28, 2019, the district court granted partial summary judgment and declaratory relief to both sets of plaintiffs, concluding that the transfers under
3
On June 29, 2019, Defendants timely appealed in both cases and asked this court to stay the permanent injunction in the Sierra Club case based on the same briefing and argument that had been presented in the preliminary injunction appeal in that case. 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 in the Sierra Club case with Defendants’ pending appeal of the preliminary injunction.2 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
The Government has not contested the Article III standing of California and New Mexico on appeal, but as the majority notes, “‘the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.‘” See Maj. Opin. at 19 n.10 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)). As “an indispensable part of the plaintiff‘s case, each element” of Article III standing “must be supported
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, California and New Mexico asserted that Defendants’ allegedly unlawful conduct caused both harm to the States’ sovereign interests in enforcing their environmental laws as well as actual environmental harm to animals and plants within the States. I agree that at least the second of these two asserted injuries-the threatened occurrence of actual environmental harm-is sufficient to establish Article III standing in this case, at least as to California.4 Although the district court correctly recognized that the States’ evidence of injury was very thin, see infra note 6, California‘s evidence is sufficient to establish standing at the summary-judgment stage.
Even assuming arguendo that the States must show a threat of injury to a protected species within their borders, rather than merely injury to individual animals or plants belonging to such a species,5 I think that California has made a sufficient showing. Accepting the States’ evidence as true, and drawing all reasonable inferences in their favor, a reasonable trier of fact could conclude that the construction activities associated with El Centro Sector Project 1 in California could materially adversely affect the local population of flat-tailed horned lizards, which California has classified
California‘s showing of a material risk to a “Species of Special Concern” is fairly traceable to the challenged funding transfers and would be redressed by a favorable decision. Lujan v. Defenders, 504 U.S. at 560-61. It therefore suffices to give us Article III jurisdiction to address the merits of the States’ causes of action. We thus may proceed to do so without having to address New Mexico‘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 States’ legal challenges fail, I perceive no obstacle to entering judgment against both California and New Mexico without determining whether the latter has standing. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 98 (1998).7
Our first task is to determine whether the States have asserted a viable cause of action that properly brings the lawfulness of the transfers before us. See Air Courier Conf. v. American Postal Workers Union AFL-CIO, 498 U.S. 517, 530–31 (1991). The majority holds that California and New Mexico have a valid cause of action under the APA. See Maj. Opin. at 30. I disagree with that conclusion, and I also disagree with the States’ alternative arguments that they may assert either an equitable cause of action under the Constitution or an “ultra vires” cause of action.8
court‘s declaratory judgment that the use of funds transferred under
A
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 States’ complaint alleges that the transfers made by DoD “do not satisfy the criteria under
Although the States invoke the Appropriations Clause and the constitutional separation of powers in contending that Defendants’ actions are “unlawful” within the meaning of the APA, 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
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 States 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
The States nonetheless insist that they are within
3
The majority makes two main arguments as to why the States nonetheless fall within
First, the majority contends that “the states regularly benefit from DoD‘s use of Section 8005,” and it cites several past examples in which the statute was used to transfer funds that allowed the military to assist in addressing storm damage from hurricanes that occurred in various States. See Maj. Opin. at 35–36. This argument is foreclosed by the Supreme Court‘s decision in Lujan v. NWF. The Court in that
Second, the majority asserts that California and New Mexico fall within
The critical flaw in the majority‘s analysis is that it rests, not on the interests asserted by the States (preservation of the flat-tailed horned lizard, etc.), but on the legal theory that the States 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 majority were correct, that would effectively eliminate the zone-of-interests test.
The majority suggests that its 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), see Maj. Opin. at 32, 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 States’ interests are inconsistent with the purposes of
Lastly, the majority suggests that we must apply the zone-of-interests test “broadly in this context,” because—given the difficulties that congressional plaintiffs have in establishing Article III standing—otherwise “no agency action taken pursuant to Section 8005 could ever be challenged under the APA.” See Maj. Opin. at 33, 36. The assumption that no one will ever be able to sue for any violation of
B
In addition to asserting claims under the APA, California and New Mexico also purport to assert claims under the Constitution, as well as an equitable cause of action to enjoin “ultra vires” conduct. The States do not have a cause of action under either of these theories.
1
The States 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.16 Even assuming that an equitable
a
The States assert two constitutional claims in their operative complaint: (1) that Defendants have violated the Presentment Clause, and the constitutional separation of powers more generally, by “unilaterally diverting funding that Congress already appropriated for other purposes to fund a border wall for which Congress has provided no appropriations“; and (2) that Defendants have violated the Appropriations Clause “by funding construction of the border wall with funds that were not appropriated for that purpose.” As clarified in their subsequent briefing, the States assert both what I will call a “strong” form of these constitutional arguments and a more “limited” form. In its strong form, the States’ argument is that, even if
I need not address whether the States 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 States’ 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 471.18 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, on the other.” Id. at 474 (emphasis added). As the Court explained, its “cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” Id. at 472. The Court distinguished Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), on the ground that there “the Government disclaimed any statutory authority for the President‘s seizure of steel mills,” and as a result the Constitution itself supplied the rule of decision for determining the legality of the President‘s actions. Dalton, 511 U.S. at 473. Because the “only basis of authority asserted was the President‘s inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces,” Youngstown thus “necessarily turned on whether the Constitution authorized the President‘s actions.” Id. (emphasis added). By contrast, given that the claim in Dalton was that the President had violated the Constitution because Executive officials had “violated the terms of the 1990 Act,” the terms of that statute provided the applicable rule of decision and the claim was therefore “a statutory one.” Id. at 474. And because those claims sought to enjoin conduct on the grounds that it violated statutory requirements, it was subject to the “longstanding” limitation that non-APA “review is not available when the statute in question commits the decision to the discretion of the President.” Id.
Under Dalton, the States’ 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 States’ 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 States 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 States involved putative plaintiffs, such as the States 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 the Appropriations Clause, the Justice Department‘s expenditure of funds to prosecute them), or they involved a suit based on an express statutory cause of action, see Clinton v. City of New York, 524 U.S. at 428 (noting that right of action was expressly conferred by
Moreover, any claim that the Constitution requires recognizing, in this context, an equitable cause of action that extends to the outer limits of Article III seems difficult to square 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 163.19 Because Congress has not expressly negated that test in any relevant respect, the States’ 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
relevant zone of interests for the States’ Appropriations-Clause-based equitable claim remains defined by those limitations. The States are thus outside the applicable zone of interests for this claim as well.
In arguing for a contrary view, the States 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
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 the matter for a determination whether the rider was being violated. Id. at 1179. Contrary to the States’ dog-that-didn‘t-bark theory, nothing can be gleaned from the fact that the zone-of-interests test was never discussed in McIntosh. See Cooper Indus., Inc. v. Aviall Servs, Inc., 543 U.S. 157, 170 (2004) (“Questions which merely lurk in the record, neither brought to the attention of the court nor
ruled upon, are not to be considered as having been so decided as to constitute precedents.“) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Moreover, any such silence seems more likely to have been due to the fact that it was so overwhelmingly obvious that the defendants were within the rider‘s zone of interests that the point was incontestable and uncontested. An asserted interest in not going to prison for complying with state medical-marijuana laws seems well within the zone of interests of a statute prohibiting interference with the implementation of such state laws.
2
The only remaining question is whether the States 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 States’ 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 79–84. The States identify no case from 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 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).20
Given that each of the States’ asserted theories fail, the States lack any cause of action to challenge the DoD‘s transfer of funds under
IV
Alternatively, even if the States had a cause of action, their claims would fail on the merits, because the challenged transfers did not violate
A
The proviso states that the Secretary may not transfer funds for an admittedly “higher priority item[] . . . than those for which originally appropriated” if “the item for which funds are requested has been denied by the Congress.”
Determining whether Congress “denied” the relevant “item” at issue here turns on the meaning of the phrase “the item for which funds are requested.” According to the States, the relevant “item” should be broadly defined to include any “border barrier construction,” and Congress should be held to have “denied” that item except to the extent that it appropriated funds for “primary pedestrian fencing” in § 230(a)(1) of the Department of Homeland Security Appropriations Act, 2019, see
As a provision designed to preserve Congress‘s authority over the appropriations process,
contrast to a transfer—which is easy to identify, because it shifts funds between separate appropriations that are “well-defined and delineated with specific language in an appropriations act“—it is more difficult to identify what counts as a reprogramming within an appropriation, because the appropriations act itself “does not set forth the subdivisions that are relevant to determine whether an agency has reprogrammed funds.” See id. at *6. There is only a need to identify a “reprogramming” when Congress has sought to place limits on an agency‘s ability to do so. See, e.g.,
For instance, for FY 2012, the Commodity Futures Trading Commission (CFTC) received a single lump-sum appropriation. Id. CFTC‘s FY 2012 budget request included an item within that lump sum to fund an Office of Proceedings. A reprogramming would occur if CFTC shifted amounts that it had
previously designated to carry out the functions of the Office of Proceedings to carry out different functions.
Id. (citing GAO, B-323792, Commodity Futures Trading Commission—Reprogramming Notification (Jan. 23, 2013)) (emphasis added).
Against this backdrop, the import of
Several features of the language of
and generated during the appropriations process for DoD. Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014) (“It is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.“) (simplified). And because those “original[]” items are to be compared with the new “items” for which the transfer authority is to “be used,”
The destination item is also referred to in the statute as “the item for which funds are requested,” which is an unusual way to refer to a transfer that an agency approves on its own.
language also confirms what is already otherwise apparent, which is that any transfer under
For all of these reasons, the “items” at issue under
Instead, the States argue that a grant of funds to another agency (DHS) in its appropriations, in an amount less than that agency requested, should be construed as a denial of an
analogous item to DoD under its entirely separate authorities and appropriations. This disregards the appropriations-law context against which
More fundamentally, the majority is quite wrong in positing that
concerning DHS would create a “denial” as to DoD only if there is some language in the DHS Appropriations Act that somehow extends that Act‘s denial vis-à-vis DHS to other agencies.21 But the only relevant limitation in that Act that even arguably extends beyond DHS is a prohibition on the construction of “pedestrian fencing” in five designated parks and refuge areas, see
B
The majority alternatively holds that, even if Congress did not deny the “item” in question, the transfers were still unlawful because the requirements invoked by the Secretary here to justify the transfers were neither “military” in nature nor “unforeseen.” See Maj. Opin. at 37–46. The majority is wrong on both counts.
1
The DoD‘s provision of support for counterdrug activities under
Two other textual clues support this conclusion. First, the chapter heading for the chapter of Title 10 that includes
The majority is also wrong in relying on the distinctive definition given in
at 2999 (emphasis added). Indeed, Congress has long handled appropriations for “military construction” separately from those for military functions, and it did so again for Fiscal Year 2019: appropriations for “military construction” were made in a separate appropriations statute enacted one week before the DoD Appropriations Act. See
Moreover, the majority fails to recognize that “military construction” is a term of art, with its own unique definition, and it therefore provides an inapt guide for trying to discern the meaning of “military” in a different phrase in a different context. Absent a special definition, one would have thought that the phrase “military construction” embraces any “construction” that is performed by or for the “military.” See supra at 94 (quoting definitions of “military“). But
whether or not the
cautious before adopting an unduly crabbed reading of what constitutes a military “requirement,” especially when Congress has explicitly assigned a task to the military, as it did in
Accordingly, DoD‘s provision of support to DHS under
2
The majority is likewise wrong in contending that DoD‘s need to provide assistance to DHS for these projects under
Once again, the majority fails to construe
“budget estimates” on which the final appropriations are based:
“The defense budget does not exist in a vacuum. There are forces at work to play havoc with even the best of budget estimates. The economy may vary in terms of inflation; political realities may bring external forces to bear; fact-of-life or programmatic changes may occur. The very nature of the lengthy and overlapping cycles of the budget process poses continual threats to the integrity of budget estimates. Reprogramming procedures permit us to respond to these unforeseen changes and still meet our defense requirements.”
RED BOOK, 2016 WL 1275442, at *5 (citation omitted). As the GAO has explained, the question is not whether a particular item “was unforeseen in general“; “[r]ather, the question under section 8005 is whether it was unforeseen at the time of the budget request and enactment of appropriations.” U.S. GAO, B-330862, Department of Defense—Availability of Appropriations for Border Fence Construction at 7-8 (Sept. 5, 2019) (emphasis added), https://www.gao.gov/assets/710/701176.pdf. Under this standard, the items at issue here were “unforeseen“; indeed, the States do not contend that funding for the DoD assistance at issue here was ever requested, proposed, or
In reaching a contrary conclusion, the majority makes two legal errors. First, it makes precisely the mistake the GAO identified, namely, it examines whether the “problem” (drug
smuggling) and the “solution” (a border barrier) were foreseen in general, rather than whether they were foreseen within the appropriations process. See Maj. Opin. at 40–41. Thus, in concluding that DoD‘s need to provide assistance under
3
DoD‘s transfers here were thus based on “military” “requirements” that were “unforeseen” within the meaning of
appropriated.” This element of
C
The States contend that, even if the transfers complied with the conditions in
V
Based on the foregoing, I conclude that at least California has Article III standing, but that the States lack any cause of action to challenge these
claims fail on the merits as a matter of law because the transfers complied with the limitations in