El Paso Cnty. v. Trump

• Decision Date: 04 December 2020
• Docket Number: No. 19-51144,19-51144
• Citation: 982 F.3d 332
• Parties: EL PASO COUNTY, TEXAS; Border Network for Human Rights, Plaintiffs—Appellees Cross-Appellants, v. Donald J. TRUMP, President of the United States, in His Official Capacity; Mark Esper, Secretary, Department of Defense, in His Official Capacity; Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security, in His Official Capacity; David Bernhardt, Secretary, U.S. Department of the Interior, in His Official Capacity; Steven T. Mnuchin, Secretary, U.S. Department of Treasury, in His Official Capacity; Todd T. Semonite, in His Official Capacity as Commanding General United States Army Corps of Engineers, Defendants—Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

982 F.3d 332

EL PASO COUNTY, TEXAS; Border Network for Human Rights, Plaintiffs—Appellees Cross-Appellants,

v.Donald J. TRUMP, President of the United States, in His Official Capacity; Mark Esper, Secretary, Department of Defense, in His Official Capacity; Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security, in His Official Capacity; David Bernhardt, Secretary, U.S. Department of the Interior, in His Official Capacity; Steven T. Mnuchin, Secretary, U.S. Department of Treasury, in His Official Capacity; Todd T. Semonite, in His Official Capacity as Commanding General United States Army Corps of Engineers, Defendants—Appellants Cross-Appellees.

No. 19-51144

United States Court of Appeals, Fifth Circuit.

FILED December 4, 2020

Kristy L. Parker, Cameron Oatman Kistler, Protect Democracy, Stuart Michael Gerson, Esq., Epstein, Becker & Green, P.C., Ephraim A. McDowell, O'Melveny & Myers, L.L.P., Washington, DC, Deana K. El-Mallawany, Justin Florence, Protect Democracy Project, Incorporated, Watertown, MA, Shaimaa Hussein, Richard Mancino, Willkie Farr & Gallagher, L.L.P., Anton Metlitsky, O'Melveny & Myers, L.L.P., New York, NY, Jessica Marsden, Protect Democracy Project, Chapel Hill, NC, John Charles Padalino, Austin, TX, for Plaintiffs-Appellees Cross-Appellants.

Courtney Dixon, H. Thomas Byron, III, U.S. Department of Justice, Civil Division, Appellate Section, Michael J. Gerardi, U.S. Department of Justice, Andrew Irwin Warden, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants-Appellants Cross-Appellees.

Lawrence John Joseph, Washington, DC, for Amicus Curiae United States Representative Andy Barr.

Richard Bernstein, Willkie Farr & Gallagher, L.L.P., Washington, DC, Richard B. Kapnick, Attorney, Nancy A. Temple, Jeffrey Tone, Katten & Temple, L.L.P., Chicago, IL, for Amici Curiae Project on Government Oversight, Christopher Shays, Christine Todd Whitman, John Bellinger, III, Samuel Witten, Stanley Twardy, Richard Bernstein.

Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Amicus Curiae State of Texas.

Samuel Callahan, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, for Amicus Curiae Former Members of Congress.

John Wallace Griffin, Jr., Robert Edward McKnight, Jr., Esq., Marek, Griffin & Knaupp, Victoria, TX, for Amicus Curiae Former United States Government Officials.

Elizabeth Goitein, Brennan Center for Justice at NYU School of Law, Washington, DC, for Amicus Curiae Brennan Center for Justice.

Chelsea Priest, McKool Smith, P.C., Dallas, TX, for Amicus Curiae Former Republican Members of Congress.

Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.

Priscilla R. Owen, Chief Judge:

El Paso County, Texas and the Border Network for Human Rights (BNHR), a community organization headquartered in El Paso, sued the government defendants, challenging their use of funds allocated for 10 U.S.C. § 284 and § 2808 purposes to construct a wall on the southern border. The district court enjoined the defendants from using § 2808 funds to build the border wall but declined to enjoin the defendants from using § 284 funds. The defendants appeal the § 2808 injunction, and the plaintiffs appeal the district court's denial of the § 284 injunction. Because El Paso County and BNHR do not have standing to challenge either the § 2808 or § 284 expenditures, we affirm in part, reverse in part, and remand.

I

In early 2019, President Trump requested that Congress appropriate $5.7 billion in fiscal year 2019 for the construction of approximately 234 miles of border wall. A month later, Congress passed the Consolidated Appropriations Act, 2019 (CAA).¹

The CAA appropriated only $1.375 billion for the construction of "primary pedestrian fencing."² Section 739 of the CAA 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 appropriations Act.³

President Trump promptly signed the CAA into law.⁴ The same day, President Trump published a factsheet announcing a plan to divert funds that Congress had appropriated for other purposes to build the border wall.⁵ The announcement stated that funds, including $2.5 billion of Department of Defense (DoD) funds originally appropriated for support for counterdrug activities under 10 U.S.C. § 284, would be "reprogrammed."⁶ The announcement also asserted that $3.6 billion of DoD funds originally appropriated for military construction projects could be reallocated under the President's declaration of a national emergency pursuant to 10 U.S.C. § 2808.⁷

Also on the same day, President Trump issued a proclamation declaring a national emergency on the southern border.⁸ The proclamation stated that "[t]he southern border is a major entry point for criminals, gang members, and illicit narcotics."⁹ Then, citing the "long-standing" "problem of large-scale unlawful migration through the southern border" and the "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," the proclamation invoked the National Emergencies Act to "declare that a national emergency exists at the southern border of the United States."¹⁰ The stated purpose for declaring a national emergency was "[t]o provide additional authority to the Department of Defense to support the Federal Government's response" and to make "the construction authority provided in section 2808" "available ... to the Secretary of Defense."¹¹

Later that month, the Department of Homeland Security formally requested that DoD assist with constructing or replacing over 200 miles of border infrastructure pursuant to DoD's § 284 authority to "provide support for the counterdrug activities" of other agencies.¹² One of the approved § 284 construction projects is located fifteen miles from downtown El Paso. Because Congress had only appropriated $517.2 million to DoD for counter-narcotics support, DoD transferred $2.5 billion from other appropriation accounts to fund the requested projects, citing § 8005 of the DoD Appropriation Act, 2019, as authority for the transfer.¹³ The DoD's transfer of funds was challenged in federal court, and the district court issued a nationwide injunction preventing DoD and other officials from using the redirected § 284 funds to construct a border wall.¹⁴ The Supreme Court granted a stay of the injunction pending appeal.¹⁵

DoD later announced plans to spend $3.6 billion on eleven military construction projects pursuant to § 2808 to support the use of the armed forces in connection with the national emergency. Section 2808(a) requires that money spent under its emergency authority be taken from "the total amount of funds that have been appropriated for military construction ... that have not been obligated."¹⁶ Accordingly, DoD redirected funds from 127 planned military construction projects to fund the emergency construction, including a $20 million defense access roads construction project at Fort Bliss, which is located within El Paso County. The closest § 2808 construction project to El Paso County is located roughly 100 miles away, in two counties in New Mexico.

El Paso County and BNHR filed a suit challenging both the President's proclamation and the Government's § 284 and § 2808 border wall expenditures. The district court granted summary judgment to the plaintiffs on the § 2808 claims, holding that the plaintiffs had standing and that the § 2808 expenditures violated the CAA. As to § 284, the court concluded that the plaintiffs’ claims were "unviable" in light of the Supreme Court's order granting a stay in Sierra Club . The court then granted the plaintiffs a declaratory judgment that the President's proclamation was unlawful to the extent it authorized the agency-head defendants to use § 2808 funds for border wall construction, and granted a permanent injunction preventing the agency-head defendants from such use. The district court denied the Government's motion to stay the injunction pending appeal. The Government then filed a motion in this court to stay the injunction. A motions panel of this court stayed the injunction pending appeal, explaining that, "among other reasons," a stay was warranted due to "the substantial likelihood that [El Paso County and BNHR] lack Article III standing."

II

We review questions of standing de novo.¹⁷ To have 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."¹⁸ "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported ... with the manner and degree of evidence required at the successive stages of litigation."¹⁹ "In a case that has proceeded to final judgment, the factual allegations supporting standing (if controverted) must be supported adequately by the evidence adduced at trial."²⁰ As the party seeking to invoke federal jurisdiction, the plaintiffs bear the burden of establishing standing for each claim they assert,²¹ and because there is a final summary judgment and a permanent injunction in this case, the plaintiffs must have adduced evidence to support controverted factual allegations.

A

We conclude that neither El Paso County nor BNHR has standing to challenge the Government's § 2808 expenditures....