United States District Court, W.D. Texas, El Paso Division
EL PASO COUNTY, TEXAS and B NETWORK FOR HUMAN RIGHTS, Plaintiffs,
DONALD J. TRUMP, in his official capacity as President of the United States of America, et al., Defendants.
HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE
day, the Court considered Plaintiffs El Paso County, Texas,
("El Paso County") and Border Network for Human
Right's ("BNHR") (collectively,
"Plaintiffs") "Motion for Summary Judgment or,
in the alternative, a Preliminary Injunction"
("Motion"), filed in the above-captioned case on
April 25, 2019. On June 10, 2019, Defendants Donald J. Trump,
Patrick M. Shanahan, Kirstjen M. Nielsen, David Bernhardt,
Steven T. Mnuchin, William Barr, John F. Bash, and Todd T.
Semonite (collectively, "Defendants") filed their
"Memorandum in Support of the Government's
Cross-Motion to Dismiss or for Summary Judgment, and
Opposition to Plaintiffs' Motion for Summary Judgment and
a Preliminary Injunction" ("Cross-Motion"). On
July 10, 2019, Plaintiffs filed a Reply. The Defendants filed
their Reply on July 31, 2019. The Court held a hearing on the
Motion and Cross-Motion on August 29, 2019.
September 10, 2019, Plaintiffs filed their "Supplemental
Brief in Light of Notice of Decision by the Department of
Defense to Authorize Border Barrier Projects Pursuant to 10
U.S.C. § 2808." On September 20, 2019, Defendants
filed their "Supplemental Brief Addressing Border
Barrier Construction Pursuant to 10 U.S.C. § 2808."
On September 24, 2019, Plaintiffs filed their Reply. After
due consideration, the Court is of the opinion that the
Plaintiffs' Motion shall be granted.
case presents questions regarding whether the proposed plan
for funding border barrier construction exceeds the Executive
Branch's lawful authority under the Consolidated
Appropriations Act ("CAA"), the Appropriations
Clause of the Constitution, the Military Construction Act -
10 U.S.C. § 2808 ("§ 2808"), the Funding
for Counterdrug Activities - 10 U.S.C. § 284
("§ 284"), and the National Emergency Act
2017, President Trump requested $999 million in congressional
appropriations for "the first installment of the border
wall." Budget Request, Pl.'s Mot. 5, ECF No. 55-6. A
Republican-controlled Congress instead provided the
Department of Homeland Security ("DHS") with $341.2
million "to replace approximately 40 miles of existing
primary pedestrian and vehicle border fencing along the
southwest border." CAA, Pub. L. No. 115-31, 131 Stat.
135, 434 (2017). In 2018, President Trump requested $1.6
billion in congressional appropriations for 74 miles of new
or replacement border wall. FY 2018 Budget in Brief,
Pl.'s Mot. 3, ECF No. 55-7. In response, Congress
appropriated $1, 571 billion for new border security
technology and new and replacement fencing in specified areas
on the southern border. CAA, Pub. L. No. 115-141 (2018) (to
be printed at 132 Stat. 348, 616).
January 2019, President Trump formally requested $5.7 billion
for fiscal year 2019 "for construction of a steel
barrier for the Southwest border." Letter to
Appropriations Chairman 1, ECF No. 55-28. On February 14,
2019, Congress passed the 2019 CAA. Pub. L. No. 116-6 (2019)
(to be printed at 133 Stat. 13). The CAA provides $1, 375
billion for "the construction of primary pedestrian
fencing" in "the Rio Grande Valley Sector."
CAA § 230(a)(1). And it states that none of the funds
appropriated by the Act can be used "for the
construction of pedestrian fencing" in any other areas
of the border. Id. § 231. A component of the
CAA, § 739 of the Financial Services and General
Government Appropriations Act, states:
None of the funds made available in this or any other
appropriations Act may be used to increase, eliminate, or
reduce funding for a program, project, or activity as
proposed in the President's budget request for a fiscal
year until such proposed change is subsequently enacted in an
appropriation Act, or unless such change is made pursuant to
the reprogramming or transfer provisions of this or any other
Pub. L. No. 116-6, div. D, § 739. On February 15, 2019,
President Trump signed the CAA into law.
February 15, 2019, the President issued a proclamation
declaring that a national emergency exists at the southern
border. See Presidential Proclamation on Declaring a
National Emergency Concerning the Southern Border of the
United States, 2019 WL 643819, at *1 (Feb. 15, 2019)
proclamation itself states:
The current situation at the southern border presents a
border security and humanitarian crisis that threatens core
national security interests and constitutes a national
emergency. The southern border is a major entry point for
criminals, gang members, and illicit narcotics. The problem
of large-scale unlawful migration through the southern border
is long-standing, and despite the executive branch's
exercise of existing statutory authorities, the situation has
worsened in certain respects in recent years. In particular,
recent years have seen sharp increases in the number of
family units entering and seeking entry to the United States
and an inability to provide detention space for many of these
aliens while their removal proceedings are pending. If not
detained, such aliens are often released into the country and
are often difficult to remove from the United States because
they fail to appear for hearings, do not comply with orders
of removal, or are otherwise difficult to locate. In response
to the directive in my April 4, 2018, memorandum and
subsequent requests for support by the Secretary of Homeland
Security, the Department of Defense has provided support and
resources to the Department of Homeland Security at the
southern border. Because of the gravity of the current
emergency situation, it is necessary for the Armed Forces to
provide additional support to address the crisis.
Proclamation No. 9844, 84 Fed. Reg. 4, 949.
addition to declaring a national emergency, the President
announced a plan, to be carried out by Defendant Acting
Secretaries of Defense and Homeland Security, to use funds
that Congress appropriated for other purposes to build a
border wall. Most relevant, President Trump directed those
Acting Secretaries to use: (1) $2.5 billion of the Department
of Defense ("DOD") funds appropriated for Support
for Counterdrug Activities under § 284; and (2) $3.6
billion of DOD funds appropriated for "military
construction projects" under § 2808. President
Donald J. Trump's Border Security Victory, White
House Fact Sheet (Feb. 15, 2019) ("Fact Sheet"),
September 3, 2019, Defendants gave the Court notice that the
DOD has made a final determination to build eleven border
wall projects using $3.6 billion in military construction
funds under 10 U.S.C. § 2808. Notice of DOD Decision,
ECF No. 112. And on September 5, 2019, Defendants gave notice
identifying the military construction projects that Congress
had already appropriated money for that will now lose funding
in order to build those eleven wall projects. Supplemental
Notice of DOD Decision, ECF No. 114. Most relevant for this
case: the DOD will divert $20 million away from a planned
military construction project at Fort Bliss in El Paso
County, and one of the new wall projects will take place in
southern New Mexico, in El Paso County's close vicinity.
2808 Deferrals in United States Territories 2, ECF No. 114-1.
parties have filed cross-motions for summary judgment. Rule
56 of the Federal Rules of Civil Procedure mandates entry of
summary judgment "if the 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); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Curtis v. Anthony, 710 F.3d 587, 594
(5th Cir. 2013). Defendants agree with Plaintiffs that this
case presents questions of law for the Court to resolve that
do not require further factual development through discovery.
In these circumstances, the Court should enter either summary
judgment for Defendants based on the parties' moving
papers or dismiss the First Amended Complaint under Federal
Rule of Civil Procedure 12.
the Court must dismiss a case under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction if
it lacks the statutory or constitutional power to adjudicate
the case. Home Builders Ass'n of Miss., Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The
party asserting subject-matter jurisdiction has the burden of
proving it exists by a preponderance of the evidence. See
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533
F.3d 321, 327 (5th Cir. 2008).
survive a motion to dismiss under Civil Rule 12(b)(6),
"a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). A complaint that
"tenders naked assertions devoid of further factual
enhancement" is insufficient. Id. (internal
citation and alteration omitted). At the summary-judgment
stage, plaintiffs "must 'set forth' by affidavit
or other evidence 'specific facts'" to establish
their standing. Lujan v. Def of Wildlife, 504 U.S.
555, 561(1992) (quoting Fed.R.Civ.P. 56(e)). When evaluating
plaintiffs' standing, courts must "take as
true" the factual evidence plaintiffs submit.
McCardell v. Dep't of Hous. & Urban Dev.,
794 F.3d 510, 520 (5th Cir. 2015); see Lujan, 504
U.S. at 561.
Plaintiffs have requested a preliminary injunction, which is
a matter of equitable discretion and is "an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief."
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008). "A plaintiff seeking preliminary injunctive
relief must establish that [it] is likely to succeed on the
merits, that [it] is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in [its] favor, and that an injunction is in the public
interest." Id. at 20.
make several claims in their Amended Complaint and seek
summary judgment, as well as permanent declaratory and
injunctive relief, because the President's Proclamation
is unlawful. Considering the Supreme Court's recent
decision in Donald J. Trump, President of the United
Sates, et al. v. Sierra Club, et al, the Court will not
further address either parties' arguments regarding the
statutory authority of DOD Secretary Shanahan to spend under
§ 8005. See No. 19A60, 2019 WL 3369425, at*1
(2019). The Supreme Court granted a stay in Defendants'
favor and reasoned "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 [§] 8005."
Id. The DOD Appropriations Act, § 8005,
authorizes the Secretary of the Department of Defense to
transfer the $2.5 billion for § 284 Support for
Counterdrug Activities. Thus, the Court finds Plaintiffs'
argument that the DOD Secretary exceeded his statutory
authority under § 284 unviable. In addition, the Court
will not address the Plaintiffs' arguments regarding the
Treasury Forfeiture Funds, as Plaintiffs abandoned these
claims at oral argument. Hr'g Tr. 67-68, ECF No. 115.
from the aforementioned § 284 and Treasury Forfeiture
Funds arguments, Plaintiffs argue that the Proclamation
exceeded the President's authority under the National
Emergency Act ("NEA"). Mot. 19, ECF No. 54.
Alternatively, according to Plaintiffs, the NEA is
unconstitutional if it authorizes the President's
Proclamation because it runs afoul of the nondelegation
doctrine and the Take Care Clause of the Constitution.
Id. at 26. Next, the Plaintiffs assert that
Defendants' use of the funds to build a border wall
violates the CAA, the Appropriations Clause of the
Constitution, and the Administrative Procedure Act
("APA"). Id. at 33, 45-46.
counter that all Plaintiffs' claims fail because Congress
intended to preclude judicial review of national emergency
declarations, that the challenge presents a nonjusticiable
political question, and that Plaintiffs cannot obtain
equitable relief against the President. Cross-Mot. 20 and 23,
ECF No. 95. Regarding Plaintiffs' alternative argument,
Defendants argue that the nondelegation challenge to the NEA
is meritless. Id. at 30. According to Defendants,
Plaintiffs' claims based on the APA are unsuccessful
because they have not satisfied the APA's requirements
for review of agency action and they fail on the merits.
Id. at 44 and 49. Finally, Defendants argue that
Plaintiffs fail to state a claim under the CAA because
nothing in the CAA modifies or disables the use of the
permanent statutes at issue in this case. Id. at 54.
to the Court's discussion of the merits of these claims
and counterclaims, the Court will address standing.
Plaintiffs claim they have standing because El Paso County is
the "object" of the Defendants' Proclamation to
build a border wall in the community. Mot. 10, ECF No. 54.
Furthermore, El Paso County has suffered reputational and
economic injuries. Id. at 11-13. For its part, BNHR
asserts organizational standing. Id. at 14.
counter, first, that Plaintiffs cannot challenge either the
Proclamation or § 284 because the alleged reputational
harm is not an injury in fact, it is not fairly traceable to
the Defendants' action, it is too speculative, and it is
not redressable by a favorable outcome. Cross-Mot. 35-39, ECF
No. 95. Second, according to Defendants, the pecuniary
injuries are not sufficiently concrete or imminent, and even
if they were, they are not traceable to the Proclamation and
subsequent actions. Id. at 40. Third,
Plaintiffs' cannot establish standing to sue under §
2808. Id. at 34.
Defendants argue that BNHR lacks standing because there is no
nexus between the organizational activities and the
Defendants' conduct, rather BNHR relies on an
"abstract social interest." Id. at 41-42.
According to Defendants, not only is
"stigmatization" not a cognizable injury for
Article III standing, but other alleged harm to the quality
of life of BNHR members is not sufficiently concrete or
imminent. Id. at 43. As discussed below, the Court
finds that the Plaintiffs do have standing and are entitled
to summary judgment based on their CAA claim.
PLAINTIFFS HAVE STANDING.
establish Article III standing, "a plaintiff must show
(1) it has suffered an 'injury in fact' that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 180-81 (2000).
summary judgment stage, plaintiffs "must 'set
forth' by affidavit or other evidence 'specific
facts'" to establish their standing. Lujan,
504 U.S. at 561 (quoting Fed.R.Civ.P. 56(e)). When evaluating
plaintiffs' standing, courts must "take as
true" the factual evidence that plaintiffs submit.
McCardell, 794 F.3d at 520; see Lujan, 504
U.S. at 561. Thus, El Paso County has standing, and BNHR has
standing both as an organization and because its members have
suffered a concrete injury.
El Paso ...