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,
CERTIFYING JUDGMENT FOR APPEAL, AND DENYING REQUEST TO STAY
RE: DKT. NOS. 168, 181
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
before the Court are cross-motions for partial summary
judgment filed by Plaintiffs Sierra Club and Southern Border
Communities Coalition, and Defendants Donald J. Trump, in his
official capacity as President of the United States; Mark T.
Esper, in his official capacity as Acting Secretary of
Defense; Kevin K. McAleenan, in his official
capacity as Acting Secretary of Homeland
Security; and Steven T. Mnuchin, in his official
capacity as Secretary of the Department of the Treasury,
briefing for which is complete. Dkt. Nos. 168
(“Pls.' Mot.”), 181 (“Defs.'
Mot.”), 192 (“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. Last, the
Court DENIES Defendants' request for a
stay of any injunction pending appeal.
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 8-9; 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 Department of Defense's
[(“DoD's”)] Section 284 account, the use of
those funds for construction of a border wall, and
Defendants' failure to comply with NEPA for this
construction”; (2) issue a permanent injunction
prohibiting Defendants from so funding border barrier
construction “prior to complying with NEPA”; and
(3) enjoin such unlawful use of funds generally. 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, (2)
use of those funds for border barrier construction under
Section 284, and (3) failure to comply with NEPA before
pursuing any such construction. See Pls.' Mot.
Sections 8005, 9002, and 284
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 and Yuma 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. 144 (“PI Order”)
Court previously only considered Defendants'
reprogramming and subsequent use of funds for border barrier
construction for El Paso Sector Project 1 and Yuma 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
and Tucson Sector Projects 1-3, pending further development
of the record as to those projects. See Id. at 12.
To fund these projects, 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 10 n.4 (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 10. 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 10-13. 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 10,
with Dkt. No. 64 at ...