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Sierra Club v. Trump

United States District Court, N.D. California

June 28, 2019

SIERRA CLUB, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          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.

         Pending 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[1]; Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security[2]; 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.[3]

         After carefully considering the parties' arguments, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion, and DENIES Defendants' motion.[4] 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.

         I. LEGAL STANDARD

         Summary 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. Fed.R.Civ.P. 56(a).

         The 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.

         II. DISCUSSION

         In 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 24-25.

         A. Declaratory Relief

         Plaintiffs 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. at 1.

         1. Sections 8005, 9002, and 284

         Starting 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.[5] Dkt. No. 144 (“PI Order”) at 31-42.

         The 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.

         In 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 ...


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