United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND
DENYING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Re: Dkt. Nos. 220, 236, 210, 236
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
before the Court are cross-motions for partial summary
judgment in two related cases, State of California v.
Trump, No. 19-cv-00872-HSG, and Sierra Club v.
Trump, No. 19-cv-00892-HSG. Plaintiffs in both cases
challenge Defendants' proposed reallocation of $3.6
billion in military construction funds under 10 U.S.C. §
2808 (“Section 2808”) to build a wall along the
southern border of the United States. Section 2808 is just
one of several alternative sources of funding that Defendants
identified for border construction after Congress
appropriated only $1.375 billion for that purpose in the
Consolidated Appropriations Act of 2019 (“CAA”),
far less than the $5.7 billion the President ultimately
requested. Compare California, 19-cv-00872-HSG, Dkt.
No. 59-4, Ex. 25, with CAA, Pub. L. No. 116-6, 133
Stat. 13 (2019). Plaintiffs assert that Defendants'
reliance on Section 2808-like Defendants' other
alternative funding plans- improperly circumvents the CAA and
Congress' appropriations power under the
Constitution.Plaintiffs therefore seek declaratory and
injunctive relief, prohibiting Defendants from using funds
under Section 2808 to build border barriers.
Court has previously explained, these two cases are not
about-and the Court offers no opinion regarding-whether the
challenged border barrier construction plan is sound policy.
See City and County of San Francisco v. United States
Citizenship and Immigration Services, No. 19-17213, (9th
Cir. Dec. 5, 2019), Dkt. No. 27 at 2-3 (Bybee, J.,
concurring) (explaining that “even as we are embroiled
in these controversies, no one should mistake our judgments
for our policy preferences, ” and that “our
thoughts on the efficacy of the one approach versus the other
are beside the point, since our business is not to judge the
wisdom of the National Government's policy”
(quotation omitted)); Trump v. Hawaii, 138 S.Ct.
2392, 2423 (2018) (indicating that the Supreme Court
“express[ed] no view on the soundness of the
policy” at issue there); In re Border
Infrastructure Envtl. Litig., 284 F.Supp.3d 1092, 1102
(S.D. Cal. 2018) (noting that the court “cannot and
does not consider whether underlying decisions to construct
the border barriers are politically wise or
prudent”). Neither does the Court here address any of
the other sources of funding that Defendants have identified
to pay for the border barrier construction. Rather, the
issues currently before the Court are narrow: whether
Defendants' proposed plan for funding border barrier
construction under Section 2808 (1) exceeds the Executive
Branch's statutory and constitutional authority; (2) is
arbitrary and capricious under the Administrative Procedures
Act, 5 U.S.C. §§ 551 et seq.,
(“APA”); and (3) violates the National
Environmental Policy Act (“NEPA”).
the Court assesses these issues against a complicated and
unprecedented backdrop. As an initial matter, presidents have
only invoked Section 2808 twice since it was enacted in 1982.
See Michael J. Vassalotti & Brendan W. McGarry,
Military Construction Funding in the Event of a National
Emergency, Cong. Research Serv., IN11017 (Jan. 11, 2019)
at 2-3; Jennifer K. Elsea, Edward C. Lieu, & Jay B.
Sykes, Can the Department of Defense Build the Border
Wall, Cong. Research Serv., LSB10242 (Feb. 18, 2019) at
3-4. Of the military construction projects funded through
Section 2808, only one was located in the United States, and
that project related to securing facilities holding weapons
of mass destruction shortly after the 9/11 attacks. See,
e.g., Vassalotti, at 1-3; see also Sierra Club,
19-cv-00892-HSG, Dkt. No. 236-5, Ex. 5. And critically, a
president has never before invoked Section 2808 to secure
funding for projects that Congress specifically declined to
fund in its appropriations judgment. Id. Yet here
the President has been explicit in his intention to obtain
funds for border barrier construction, with or without
Congress. See, e.g., California,
19-cv-00872-HSG, Dkt. No. 59-4, Exs. 13, 21; Sierra
Club, 19-cv-00892-HSG, Dkt. No. 36-3, Ex. C.
Accordingly, the President invoked Section 2808 the day after
Congress passed the CAA, which provided limited funding for,
and contained restrictions regarding funding for, border
barrier construction. See CAA, § 230(a)(1), 133
Stat. at 28.
Court heard argument on these motions on November 20, 2019.
See California, 19-cv-00872-HSG, Dkt. No. 250;
Sierra Club, 19-cv-00892-HSG, Dkt. No. 248. After
carefully considering the parties' arguments, the Court
GRANTS IN PART Sierra Club Plaintiffs'
partial motion for summary judgment; GRANTS IN
PART State Plaintiffs' partial motion for
summary judgment; and DENIES Defendants'
motions. // //
Court has detailed the lengthy history of these cases in its
prior orders, and incorporates the factual background in
full. See Sierra Club, No. 19-cv-00892-HSG, Dkt. No.
144. The Court also briefly summarizes and notes subsequent
factual developments as relevant to this order.
the longest partial government shutdown in the nation's
history, Congress passed the CAA on February 14, 2019, making
available $1.375 billion “for the construction of
primary pedestrian fencing, including levee pedestrian
fencing, in the Rio Grande Valley Sector.” See
CAA, § 230(a)(1), 133 Stat. at 28. On February 15, 2019,
the President signed the CAA into law. See generally
Id. That same day, the President invoked his authority
under the National Emergencies Act (“NEA”), Pub.
L. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50
U.S.C. §§ 1601-51), and declared that “a
national emergency exists at the southern border of the
United States.” See Proclamation No. 9844, 84
Fed. Reg. 4, 949 (Feb. 15, 2019) (“Proclamation No.
9844”). The proclamation further “declar[ed] that
this emergency requires use of the Armed Forces, ” and
made available “the construction authority provided in
[S]ection 2808.” Id. When announcing the
proclamation, the President explained that he initially
“went through Congress” for the $1.375 billion in
funding, but was “not happy with it.” See
California, No. 19-cv-00872-HSG, Dkt. No. 59-4, Ex. 50.
that time, Congress has sought to terminate the national
emergency on two separate occasions. On March 14, 2019,
Congress passed a joint resolution to terminate the emergency
declaration. See H.R.J. Res. 46, 116th Cong. (2019).
On March 15, 2019, the President vetoed the joint resolution.
See Veto Message to the House of Representatives for H.J.
Res. 46, The White House (Mar. 15, 2019),
Congress failed to override the President's veto.
See 165 Cong. Rec. H2799, H2814-15 (2019). On
September 27, 2019, Congress passed a second joint resolution
to terminate the emergency declaration. See S.J.
Res. 54, 116th Cong. (2019). And on October 15, 2019, the
President vetoed the second joint resolution. See S.J.
Res. 54 Veto Message, The White House (Oct. 15, 2019),
(“S.J. Res. 54 Veto Message”). Again, Congress
failed to override the veto. See S.J. Res. 54, 116
Cong. (2019). Congress has an ongoing obligation to consider
whether to terminate the emergency every six months, but the
President's declaration of a national emergency remains
in effect. See 50 U.S.C. § 1622(a)-(b).
Military Construction Funds and Diverted Projects
February 11, 2019, prior to the President's proclamation
and invocation of Section 2808, the Chairman of the Joint
Chiefs of Staff submitted a preliminary assessment to the
Acting Secretary of Defense regarding whether and how
military construction projects could support the use of the
armed forces in addressing a national emergency at the
southern border. See California, No.
19-cv-00872-HSG, Dkt. No. 212 (“Administrative
Record” or “AR”) at 119-124. The memorandum
explained that the Department of Homeland Security
(“DHS”) identified specific geographic areas in
which border barriers could allow Department of Defense
(“DoD”) personnel and resources “to be
employed more efficiently” and “reduce DHS
requirements for DoD support.” Id. However,
although the President authorized use of military
construction funds under Section 2808 in his February 15
proclamation, Defendants did not exercise this authority for
in the intervening months, the Chairman of the Joint Chiefs
of Staff submitted a supplemental assessment on May 6, 2019,
regarding military construction projects at the southern
border. See AR at 59-70. In the updated memorandum,
the Chairman again concluded that such construction
“can reasonably be expected to support the use of the
armed forces by enabling more efficient use of DoD personnel,
and may ultimately reduce the demand for military support
over time.” See Id. at 60. The Chairman
explained that although “any border barrier
construction supports the use of the armed forces on the
border to some extent, ” the Joint Chiefs prioritized
fifteen projects, totaling $3.6 billion. See Id. at
63. On May 15, 2019, Defendants informed the Court that the
Under Secretary of Defense had identified existing military
construction project funding to divert for border barrier
construction pursuant to Section 2808, but that the Acting
Secretary of Defense had “not yet decided to undertake
or authorize any barrier construction projects under §
2808.” See California, 19-cv-00872-HSG, Dkt.
No. 151 at 3.
September 3, 2019, the Secretary of Defense announced that he
had decided to authorize eleven specific border barrier
construction projects in California, Arizona, New Mexico, and
Texas, pursuant to Section 2808. See California,
19-cv-00872-HSG, Dkt. Nos. 206, 206-1, Ex. 1. In doing so, he
reiterated that these projects “will reduce the demand
for DoD personnel and assets to other high-traffic areas on
the border without barriers.” See id., Dkt.
No. 206-1, Ex. 1. He concluded that “[i]n short, these
barriers will allow DoD to provide support to DHS more
efficiently and effectively.” Id.
the eleven projects total $3.6 billion and include 175 miles
of border barrier construction across four states.
Id. These projects fall into three categories:
• Two projects on the Barry M. Goldwater Range military
installation in Arizona;
• Seven projects on federal public domain land that is
under the jurisdiction of the Department of the Interior; and
• Two projects on non-public land that would need to be
acquired through either purchase or condemnation before
construction could begin.
See id., Dkt. Nos. 206 at 2-4, 206-1, Ex. 1. The
Secretary of Defense authorized the Secretary of the Army
“to expeditiously undertake the eleven border barrier
military construction projects, ” including taking the
necessary steps to acquire the public domain and non-public
land as part of “the Army's real property
inventory, either as a new military installation or as part
of an existing military installation.” See
id., Dkt. No. 206-1, Ex. 1 at 1; see also AR at
3-6, 9-10, 30-31. That same day, in a briefing on the use of
Section 2808, DoD representatives explained that the $3.6
billion would “all go to adding significantly new
capabilities to DHS's ability to prevent illegal
entry.” See Sierra Club, No. 19-cv-00892-HSG,
Dkt. No. 210-2, Ex. 17 at 5.
days later, on September 5, 2019, the Secretary of Defense
identified which military construction projects DoD intended
to defer in order to fund the border barrier construction
projects. See California, 19-cv-00872-HSG, Dkt. Nos.
207, 207-1, Ex. 1. In total, the Secretary of Defense
authorized diverting funding from 128 military construction
projects, domestically and abroad. See id., Dkt. No.
207-1, Ex. 1. Sixty-four of the defunded military
construction projects are located within the United States;
and nineteen projects, totaling over $500 million, are within
Plaintiff States California, Colorado, Hawaii, Maryland, New
Mexico, Oregon, Virginia, and Wisconsin. See id.;
see also id., No. 19-cv-00872-HSG, Dkt. No. 220-5,
Secretary of Defense explained that he sought to identify
projects for defunding and deferral based on the
projects' timing, and thus the 128 projects “are
not scheduled for award until fiscal year 2020 or
later.” See AR at 13. Doing so, he stated,
would “provide [DoD] time to work with [Congress] to
determine opportunities to restore funds for these important
military construction projects . . . .”
California, 19-cv-00872-HSG, Dkt. No. 206-2, Ex. 2
at 2; cf. S. 1790, 116th Cong. § 2906
(“Replenishment of Certain Military Construction
Funds”). The deferred projects include rebuilding
hazardous materials warehouses at Norfolk and the Pentagon;
replacing a daycare facility for servicemembers' children
at Joint Base Andrews, which reportedly suffers from
“sewage backups, flooding, mold and pests”; and
improving security to comply with anti-terrorism and force
protection standards at Kaneohe Bay. See Sierra
Club, No. 19-cv-00892-HSG, Dkt. No. 202-1, Ex. 1;
id., Dkt. No. 210-2, Ex. 18; see also
California, No. 19-cv-00872-HSG, Dkt. No. 232 (Brief of
Amici Curiae Iraq and Afghanistan Veterans of
America) (“IAVA Brief”).
accordance with the Secretary of Defense's directive, the
Secretary of the Army has taken steps over the past few
months to obtain administrative jurisdiction over some of the
land for the border barrier construction projects. On October
7, 2019, the Secretary of the Interior announced the transfer
of approximately 560 acres of federal lands to the Department
of the Army for a period of three years for border barrier
construction in Arizona, California, and New Mexico. See
California, No. 19-cv-00872-HSG, Dkt. No. 220-5, Ex. 1.
Additionally, on October 8, 2019, the Secretary of the Army
issued General Order No. 2019-36, which automatically assigns
all land transferred to the Army for Section 2808 border
barrier construction projects to the U.S. Army Garrison Fort
Bliss, Texas, irrespective of the location of the land.
See id., Dkt. No. 236-7, Ex. 7.
the hearing on the motions for partial summary judgment,
Defendants' counsel also represented to the Court that
there have been two contracts awarded related to the border
barrier construction projects. See California, No.
19-cv-00872-HSG, Dkt. No. 254 at 81:2-24. The first contract
relates to the projects on the Barry M. Goldwater Range, in
Arizona: that contract was awarded on November 6, 2019, and
ground disturbing activity was anticipated to start no
earlier than November 27, 2019. Id. The second
contract relates to a project in San Diego County,
California: that contract was awarded on November 19, 2019,
and ground disturbing activity was anticipated to start no
earlier than December 9, 2019. Id.
the passage of the CAA and the President's national
emergency declaration in February 2019, the State and Sierra
Club Plaintiffs filed suit challenging Defendants'
anticipated diversion of federal funds for border barrier
construction pursuant to several statutory provisions. These
include reallocating funds from the Treasury Forfeiture Fund;
DoD's Appropriations Act of 2019 under Section 8005 and
10 U.S.C. § 284; and DoD appropriations for military
construction projects under Section 2808. See Sierra
Club, No. 19-cv-00892-HSG, Dkt. No. 36-7, Ex. G at 2- 4;
see also id., Dkt. No. 64-8, ¶¶ 5-6.
Court first preliminarily enjoined Defendants' use of
funds for two border barrier construction projects in New
Mexico and Arizona under Section 8005. See Sierra
Club, No. 19-cv-00892-HSG, Dkt. No. 144. The Court
reasoned that Plaintiffs were likely to show that (1) the
language and purpose of Section 8005 precluded
Defendants' transfer and use of funds for construction of
border barriers because Congress had already explicitly
denied those requested funds; (2) the need for such funds was
not unforeseen as the Administration had requested such
funding as early as 2018; and (3) Defendants' proposal
likely would violate the Constitution's separation of
powers principles to the extent it bypassed Congress'
appropriations authority. Id. At the time, Sierra
Club Plaintiffs also sought a preliminary injunction to
preclude Defendants' proposed use of Section 2808.
See id., Dkt. No. 29 at 13-15, 23-25. However, the
Court found that Plaintiffs could not show irreparable harm
as needed to warrant an injunction because as of May 2019,
Defendants had not yet made a final decision as to whether to
use Section 2808 funds. Id., Dkt. No. 144 at 51-53.
Court subsequently affirmed its ruling on Defendants' use
of Section 8005, granting in part the motions for partial
summary judgment filed by California, New Mexico, and the
Sierra Club Plaintiffs, and denying Defendants' motions
for partial summary judgment. See California, No.
19-cv-00872-HSG, Dkt. No. 185; Sierra Club, No.
19-cv-00892-HSG, Dkt. No. 185. The Court entered a permanent
injunction, prohibiting Defendants from taking any action to
construct a border barrier in the six sectors that Defendants
identified in New Mexico, Arizona, and California, using
funds reprogrammed by DoD under Section 8005. Sierra
Club, No. 19-cv-00892-HSG, Dkt. No. 185 at 10.
the Court's summary judgment orders, Defendants filed an
emergency application with the Ninth Circuit for a stay of
the injunction. On July 3, 2019, the Ninth Circuit motions
panel denied the stay application, finding that
Defendants' border barrier construction was not
authorized by any statutory appropriation, such that the
proposed reprogramming and use of these funds violated the
Appropriations Clause. See Sierra Club v. Trump, 929
F.3d 670, 676- 77 (9th Cir. 2019). The motions panel further
held-over Defendants' objection-that Plaintiffs have an
equitable cause of action to challenge Defendants'
funding proposal as unconstitutional, and that Plaintiffs
satisfied any “zone of interests” test that may
apply to their claim. See Id. at 694-704; see
also Section III.A below.
26, 2019, the Supreme Court stayed the permanent injunction
pending resolution of the government's appeal before the
Ninth Circuit and any subsequent writ of certiorari. See
Trump v. Sierra Club, 140 S.Ct. 1 (2019). In the
one-paragraph decision, the Supreme Court stated that
“the Government has made a sufficient showing at this
stage that the plaintiffs have no cause of action to obtain
review of the Acting Secretary's compliance with Section
8005.” Id. The Supreme Court, however,
provided no further explication of its reasoning, and the
appeal before the Ninth Circuit regarding Section 8005
interim, the parties agreed to stay the summary judgment
briefing schedule as to Section 2808 and the Treasury
Forfeiture Fund until the Acting Secretary of Defense and
U.S. Customs and Border Protection (“CBP”),
respectively, reached a final decision to fund specific
barrier construction projects under these provisions. See
California, No. 19-cv-00872-HSG, Dkt. Nos. 199, 200;
Sierra Club, No. 19-cv-00892-HSG, Dkt. Nos. 191,
197. Because the Secretary of Defense has since announced his
authorization for border barrier construction projects
pursuant to Section 2808, as detailed in Section I.A.ii
above, the parties now move for partial summary judgment as
to this proposal.
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.
Plaintiffs' Cause of Action
threshold matter, Defendants contend that Plaintiffs lack a
cause of action through which they may challenge the proposed
use of military construction funds under Section 2808. They
argue that Plaintiffs may not seek equitable relief through
an implied cause of action under the Constitution, and that
Plaintiffs fall outside the zone of interests protected by
Section 2808 and the CAA. As Defendants acknowledge, they
raised the same arguments before this Court and the Ninth
Circuit motions panel in the context of Plaintiffs'
challenge to funding a border wall using Section 8005. In
response, the Ninth Circuit engaged in a detailed
discussion-and rejection-of each point, concluding that
“Plaintiffs have an avenue for seeking relief.”
See Sierra Club, 929 F.3d at 694-704; see also
Sierra Club, No. 19-cv-00892-HSG, Dkt. No. 245 (Brief of
Amici Curiae Federal Courts Scholars).
the Ninth Circuit held that Plaintiffs could challenge the
reprogramming of funds under Section 8005 “through an
equitable action to enjoin unconstitutional official
conduct.” Sierra Club, 929 F.3d at 694.
Plaintiffs' argument there, as here, is that
Defendants' attempt to reprogram funds for border barrier
construction violates the Appropriations Clause, and thus
separation of powers principles, because “Defendants
lack any background constitutional authority to appropriate
funds.” See Id. at 696. The Ninth Circuit
confirmed that such a claim is “fundamentally a
constitutional one, ” and “Plaintiffs may seek
equitable relief to remedy an alleged constitutional
violation.” Id. at 695-97. That Defendants
rely on Section 8005 (or here, Section 2808) as the basis for
their efforts to reallocate funds for border barrier
construction does not convert a constitutional claim into a
statutory one. See Id. at 697 (“It cannot be
that simply by pointing to any statute, governmental
defendants can foreclose a constitutional claim.”).
the Ninth Circuit expressed “doubt that any zone of
interests test applies to Plaintiffs' equitable cause of
action to enjoin a violation of the Appropriations
Clause.” Id. at 700. A zone of interests test
is used “to ‘determine, using traditional tools
of statutory interpretation, whether a legislatively
conferred cause of action encompasses a particular
plaintiff's claim.'” Id. (quoting
Lexmark Int'l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 127 (2014)). The test “ask[s]
whether the plaintiff's ‘interests fall within the
zone of interests protected by the law invoked.'”
Id. (quoting Lexmark, 572 U.S. at 129). The
Ninth Circuit highlighted the problems with applying a zone
of interests test to Plaintiffs' constitutional claim:
“[W]here the very claim is that no statutory or
constitutional provision authorized a particular governmental
action, it makes little sense to ask whether any statutory or
constitutional provision was written for the benefit of any
particular plaintiffs.” Id. at 701 (emphasis
omitted). Moreover, “[b]ecause the Constitution was not
created by any act of Congress, it is hard to see how the
zone of interests test would even apply.” Id.
at 702. Thus, the Court concluded that “it is likely
sufficient here that Plaintiffs would be concretely injured
by the alleged Appropriations Clause violation, and that no
zone of interests test applies to their claim.”
Id. at 701.
even if a zone of interests test did apply to such a
constitutional claim, the Ninth Circuit explained that the
proper inquiry is whether Plaintiffs fall within the zone of
interests of the constitutional provision, and not the
statute Defendants raise in defense. Id. at 703-04.
The Court explained that “individuals, too, are
protected by the operations of separation of powers and
checks and balances, ” and thus, Plaintiffs'
contention “that their rights or liberties were
infringed by a violation of the Appropriations Clause . . .
falls within any zone of interests required to enforce that
clause's provisions.” Id. at 704
Miller v. Gammie
urge the Court to disregard the Ninth Circuit's reasoning
in light of the Supreme Court's opinion staying the
permanent injunction as to Section 8005. See Trump,
140 S.Ct. at 1. Defendants argue that the “Supreme
Court decision sends a strong signal” that they
ultimately will prevail on the claim that their exercise of
authority under Section 8005 may not be challenged by these
Plaintiffs. See Sierra Club, No. 19-cv-00892-HSG,
Dkt. No. 236 at 11. This claimed “strong signal”
is based on a sentence in the Supreme Court's stay order
stating that “the Government has made a sufficient
showing at this stage that the plaintiffs have no cause of
action to obtain review of the Acting Secretary's
compliance with Section 8005.” See Trump, 140
S.Ct. at 1. However, notwithstanding Defendants'
characterization of this “signal, ” the Court may
not so readily disregard the Ninth Circuit's opinion. The
Ninth Circuit has cautioned that only in cases of
“clear irreconcilability” can district courts
“consider themselves bound by the intervening higher
authority and reject the prior opinion of [the Ninth Circuit]
as having been effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc).
“This is a high standard, ” which “requires
[the district court] to look at more than the surface
conclusions of the competing authority.” Rodriguez
v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979
(9th Cir. 2013) (quotation omitted).
stage, the Court can only speculate regarding the reasoning
underlying the stay, including what it means for how the
Supreme Court may ultimately assess the merits of these two
cases. As Justice Breyer explained, “[t]his
case raises novel and important questions about the ability
of private parties to enforce Congress' appropriations
power.” Trump, 140 S.Ct. 1 (Breyer, J.,
concurring in part and dissenting in part). Because the
Supreme Court opinion does not address these questions
directly, the Court cannot find that it is “clearly
irreconcilable with the reasoning or theory” in the
Ninth Circuit panel opinion. See Miller, 335 F.3d at
899; accord Close v. Sotheby's, Inc., 894 F.3d
1061, 1074 (9th Cir. 2018) (holding that even where a prior
panel opinion's “reasoning would be suspect today,
 it is not clearly irreconcilable with intervening higher
authority”); Doe v. Trump, 284 F.Supp.3d 1182,
1184-85 (W.D. Wash. 2018) (“[T]his court is not at
liberty to simply ignore binding Ninth Circuit precedent
based on Defendants' divination of what the Supreme Court
was thinking when it issued the stay orders . . . .”).
The Ninth Circuit's opinion in Sierra Club v.
Trump therefore controls this Court's analysis.
Zone of Interests
the Ninth Circuit's reasoning, as it must, the Court
finds that Plaintiffs may challenge Defendants' funding
for border barrier construction under Section 2808. As with
their challenge to Defendants' use of funds under Section
8005, Plaintiffs' claim that Defendants' use of
military construction authority under Section 2808 violates
the Appropriations Clause is “fundamentally a
constitutional” claim. See Sierra Club, 929
F.3d at 696-97. And to the extent Plaintiffs must fall within
the zone of interests of the Appropriations Clause to assert
this claim, see Id. at 703-04, the Court finds this
“low bar” easily satisfied here. See Cook v.
Billington, 737 F.3d 767, 771 (D.C. Cir. 2013)
(Kavanaugh, J.) (“A plaintiff with Article III standing
satisfies the requirement unless his 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.” (quotation
Court first looks to the fundamental interests protected by
the Appropriations Clause, and observes that the importance
of those interests cannot be overstated. The Appropriations
Clause “is particularly important as a restraint on
Executive Branch officers: If not for the Appropriations
Clause, the Executive would possess an unbounded power over
the public purse of the nation; and might apply all its
monied resources at his pleasure.” U.S. Dep't
of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339,
1347 (D.C. Cir. 2012) (Kavanaugh, J.) (quotation omitted). As
such, members of the public, and not just Congress, have an
interest in ensuring that the Constitution's checks on
executive power are upheld. As the Ninth Circuit noted,
“[t]he Appropriations Clause is a vital instrument of
separation of powers, which has as its aim the protection of
individual rights and liberties-not merely separation for
separation's sake.” Sierra Club, 929 F.3d
at 704. Both State and Sierra Club Plaintiffs assert that if
Defendants proceed with their proposed spending plan in
contravention of Congress' appropriations judgment, they
will suffer injury to their “environmental,
professional, aesthetic, and recreational interests.”
Id. In short, the Court finds that Plaintiffs have a
cause of action to challenge Defendants' invocation of
Section 2808 as unconstitutional, and proceeds to analyze
this claim below.
Ninth Circuit's opinion in Sierra Club v. Trump
further guides the Court's analysis of Plaintiffs'
constitutional claim. See Sierra Club, 929 F.3d at
689-92. Plaintiffs' claim-and the legal theory
undergirding both cases-is that Defendants seek to circumvent
Congress' appropriations power, and its judgment to
provide the Administration with limited funds for specified
and limited border barrier construction, by seeking funding
through alternative channels. Defendants' counsel
characterized the Administration's approach as “a
full-court press, ” meaning they are using any means
that they contend are available to them to fund a border
wall. See California, No. 19-cv-00872-HSG, Dkt. No.
254 at 73:5-19. Although Plaintiffs appear to challenge all
funding for border barrier construction outside of the CAA,
for purposes of this order, Defendants contend that in
Section 2808, Congress allowed Defendants to make this
reallocation from existing military construction projects to
the border barrier construction. Because Congress only
exercises its appropriations power through statutes, the
Ninth Circuit accordingly focused its analysis on the text
and purpose of Defendants' asserted defense. Sierra
Club, 929 F.3d at 689-92. The critical inquiry,
therefore, is whether Section 2808 authorizes this
reallocation. If it does not, “then Defendants are
acting outside of any statutory appropriation and are
therefore spending funds contrary to Congress's
appropriations decisions.” Id. at 689. The
Court therefore analyzes whether Defendants' conduct
falls within the statutory authority provided by Section
Section 2808, the Secretary of Defense may use funds
previously appropriated for other projects in limited
circumstances where three factors are satisfied: (1) there is
a national emergency that requires use of the armed forces,
and (2) “military construction projects” are (3)
“necessary to support such use of the armed
forces.” See 10 U.S.C. § 2808(a).
Plaintiffs challenge all three conditions, arguing that
Defendants fail to satisfy any of them.