United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING
DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT, AND
CERTIFYING JUDGMENT FOR APPEAL RE: DKT. NOS. 176,
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
before the Court are cross-motions for partial summary
judgment filed by Plaintiff States California and New Mexico,
and Defendants Donald J. Trump, in his official capacity as
President of the United States; the U.S. Department of
Defense (“DoD”); Mark T. Esper, in his official
capacity as Acting Secretary of Defense; Ryan D.
McCarthy, in his official capacity as Acting 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; the U.S.
Department of the Treasury; Steven T. Mnuchin, in his
official capacity as Secretary of the Department of the
Treasury; the U.S. Department of the Interior; David
Bernhardt, in his official capacity as Secretary of the
Interior; the U.S. Department of Homeland Security
(“DHS”); and Kevin K. McAleenan, in his official
capacity as Acting Secretary of Homeland Security,
briefing for which is complete. Dkt. Nos. 176
(“Pls.' Mot.”), 182 (“Defs.'
Mot.”), 183 (“Pls.' Reply”). The only
issue presently before the Court concerns Defendants'
intended reprogramming of funds under Sections 8005 and 9002
of the Department of Defense Appropriations Act, 2019, Pub.
L. No. 115-245, 132 Stat. 2981 (2018), and subsequent use of
such funds under 10 U.S.C. § 284 (“Section
284”) for border barrier construction.
carefully considering the parties' arguments, the Court
GRANTS IN PART and DENIES IN
PART Plaintiffs' motion, and
DENIES Defendants' motion. The Court also
certifies this judgment for immediate appeal pursuant to Rule
54(b) of the Federal Rules of Civil Procedure.
judgment is proper when a “movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A fact is “material” if it “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). And a dispute is “genuine”
if there is evidence in the record sufficient for a
reasonable trier of fact to decide in favor of the nonmoving
party. Id. But in deciding if a dispute is genuine,
the court must view the inferences reasonably drawn from the
materials in the record in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986), and “may
not weigh the evidence or make credibility determinations,
” Freeman v. Arpaio, 125 F.3d 732, 735 (9th
Cir. 1997), overruled on other grounds by Shakur v.
Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). If a
court finds that there is no genuine dispute of material fact
as to only a single claim or defense or as to part of a claim
or defense, it may enter partial summary judgment.
parties agree that the issue presently before the Court is
properly resolved on their cross-motions for partial summary
judgment. Pls.' Mot. at 9; Defs.' Mot. at 9.
their motion, Plaintiffs request that the Court (1) enter
final judgment in their favor declaring unlawful
Defendants' transfer of Fiscal Year 2019 appropriated
funds to the DoD's Section 284 account and those
funds' subsequent use for border barrier construction;
and (2) enjoin such unlawful use of funds. Pls.' Mot. at
1. Defendants' motion seeks a final determination that
their intended use of funds under Sections 8005, 9002, and
284 for border barrier construction is lawful. Defs.'
Mot. at 2. Defendants also request that the Court certify
this judgment for appeal under Rule 54(b). Id. at
seek a declaratory judgment finding unlawful Defendants'
(1) reprogramming of funds under Sections 8005 and 9002, and
(2) use of those funds for border barrier construction under
Section 284. See Pls.' Mot. at 1. Plaintiffs
contend that Defendants' actions “(1) are ultra
vires; (2) violate the United States Constitution's
separation of powers principles, including the Appropriations
and Presentment Clauses; and (3) violate the Administrative
Procedure Act (APA).” Id.
with Section 8005, the Court previously held that Plaintiffs
were likely to succeed on their arguments that
Defendants' intended reprogramming of funds under Section
8005 to the Section 284 account to fund border barrier
construction in El Paso Sector 1 is unlawful. In particular,
the Court found that Plaintiffs were likely to show that (1)
the item for which funds are requested has been denied by
Congress; (2) the transfer is not based on “unforeseen
military requirements”; and (3) accepting
Defendants' proposed interpretation of Section 8005's
requirements would raise serious constitutional
questions. Dkt. No. 165 (“PI Order”) at
Court previously only considered Defendants'
reprogramming and subsequent use of funds for border barrier
construction for El Paso Sector Project 1. It did not
consider Defendants' more-recently announced
reprogramming and subsequent diversion of funds for border
barrier construction for the El Centro Sector Project,
pending further development of the record as to this project.
See Id. at 13 n.9. To fund this project, Defendants
again invoked Section 8005, as well as DoD's
“special transfer authority under section 9002 of the
Department of Defense Appropriations Act, 2019, and section
1512 of the John S. McCain National Defense Authorization Act
for Fiscal Year 2019.” See Dkt. No. 118-1
(“Rapuano Second Decl.”) ¶ 7.
Defendants' Section 9002 authority, however, is subject
to Section 8005's limitations. See Department of
Defense Appropriations Act, 2019, Pub. L. No. 115-245, §
9002, 132 Stat. 2981, 3042 (2018) (providing that “the
authority provided in this section is in addition to any
other transfer authority available to the Department of
Defense and is subject to the same terms and conditions as
the authority provided in section 8005 of this Act”);
see also Defs.' Mot. at 9 n.3 (acknowledging
that Section 9002 is subject to Section 8005's
requirements). Because Defendants agree that all such
authority is subject to Section 8005's substantive
requirements, the Court refers to these requirements
collectively by reference to Section 8005.
their pending motion, “Defendants acknowledge that the
Court previously rejected [their] arguments about the proper
interpretation of § 8005 in its [preliminary injunction
order].” Defs.' Mot. at 9. Defendants contend that
the Court's findings were wrong for two reasons: (1)
“Plaintiffs fall outside the zone of interests of
§ 8005 and thus cannot sue to enforce it”; and (2)
“DoD has satisfied the requirements set forth in §
8005.” Id. at 9-12. But Defendants here offer
no evidence or argument that was not already considered in
the Court's preliminary injunction order. For example,
Defendants continue to argue that under Lexmark
International, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014), the zone-of-interests test applies to
Plaintiffs' claims. Compare Opp. at 9-10,
with Dkt. No. 89 at 18-19. And the Court continues
to find that the test has no application in an ultra
vires challenge, which operates outside of the APA
framework, and the Court incorporates here its prior
reasoning on this point. PI Order at 11-12.
also continue to assert that DoD did not transfer funds for
an item previously denied by Congress and that the transfer
was for an “unforeseen” requirement.
Compare Opp. at 10-11, with Dkt. No. 89 at
19-20. But Defendants again present no new evidence or
argument for why the Court should depart from its prior
decision, and it will not. The Court thus stands by its prior
finding that Defendants' proposed interpretation of the
statute is unreasonable, and agrees with Plaintiffs that
Defendants' intended reprogramming of funds under Section
8005-and necessarily under Section 9002 as well-to the
Section 284 account for border barrier construction is
unlawful. See PI Order at 13-24. Because no new
factual or legal arguments persuade the Court that its
analysis in the preliminary injunction order was wrong,
Plaintiffs' likelihood of success on the merits has