Sierra Club v. Trump, 062620 FED9, 19-16102

Docket Nº:19-16102, 19-16300
Opinion Judge:THOMAS, Chief Judge.
Party Name:Sierra Club; Southern Border Communities Coalition, Plaintiffs-Appellees, v. Donald J. Trump, in his official capacity as President of the United States; Mark T. Esper, in his official capacity as Secretary of the Defense; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; Steven Terner Mnuchin, in his official...
Attorney:H. Thomas Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan and James M. Burnham, Deputy Assistant Attorneys General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellan...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges. COLLINS, Circuit Judge, dissenting:
Case Date:June 26, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Sierra Club; Southern Border Communities Coalition, Plaintiffs-Appellees,

v.

Donald J. Trump, in his official capacity as President of the United States; Mark T. Esper, in his official capacity as Secretary of the Defense; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; Steven Terner Mnuchin, in his official capacity as Secretary of the Department of the Treasury, Defendants-Appellants.

Nos. 19-16102, 19-16300

United States Court of Appeals, Ninth Circuit

June 26, 2020

Argued and Submitted November 12, 2019 San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. No. 4:19-cv-00892-HSG Haywood S. Gilliam, Jr., District Judge, Presiding.

H. Thomas Byron III (argued), Anne Murphy, and Courtney L. Dixon, Appellate Staff; Hashim M. Mooppan and James M. Burnham, Deputy Assistant Attorneys General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina Shamsi, and Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Mollie M. Lee and Christine P. Sun, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; David Donatti and Andre I. Segura, American Civil Liberties Union Foundation of Texas, Houston, Texas; Sanjay Narayan and Gloria D. Smith, Sierra Club Environmental Law Program, Oakland, California; for Plaintiffs-Appellees.

Douglas N. Letter (argued), Todd B. Tatelman, Megan Barbero, Josephine Morse, and Kristin A. Shapiro, United States House of Representatives, Washington, D.C.; Carter G. Phillips, Virginia A. Seitz, Joseph R. Guerra, and Christopher A. Eiswerth, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae United States House of Representatives.

James F. Zahradka II (argued), Brian J. Bilford, Sparsh S. Khandeshi, Heather C. Leslie, Lee I. Sherman, and Janelle M. Smith, Deputy Attorneys General; Michael P. Cayaban, Christine Chuang, and Edward H. Ochoa, Supervising Deputy Attorneys General; Robert W. Byrne, Sally Magnani, and Michael L. Newman, Senior Assistant Attorneys General; Xavier Becerra, Attorney General; Attorney General's Office, Oakland, California; Jennie Lusk, Civil Rights Bureau Chief; Nicholas M. Sydow, Civil Appellate Chief; Tania Maestas, Chief Deputy Attorney General; Hector Balderas, Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Amici Curiae States of California and New Mexico.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C.; Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae United States Representative Andy Barr.

John W. Howard, George R. Wentz Jr., Richard Seamon, and D. Colton Boyles, Davillier Law Group LLC, Sandpoint, Idaho, for Amicus Curiae State of Arizona House of Representatives Federal Relations Committee.

Richard P. Hutchison, Landmark Legal Foundation, Kansas City, Missouri; Michael J. O'Neill and Matthew C. Forys, Landmark Legal Foundation, Leesburg, Virginia; for Amici Curiae Angel Families, Sabine Durden, Don Rosenberg, Brian McAnn, Judy Zeito, Maureen Mulroney, Maureen Laquerre, Dennis Bixby, and Advocates for Victims of Illegal Alien Crimes.

Douglas A. Winthrop, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin Konkel, and Samuel F. Callahan, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amici Curiae Former Members of Congress.

Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Federal Courts Scholars.

Steven A. Zalesin, Adeel A. Mangi, and Amir Badat, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amici Curiae 75 Religious Organizations.

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Kathleen R. Hartnett, Boies Schiller Flexner LLP, San Francisco, California; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Former United States Government Officials.

Samuel F. Daughety and Suzanne R. Schaeffer, Dentons U.S. LLP, Washington, D.C.; Joshua O. Rees, Acting Attorney General, Tohono O'Odham Nation, Sells, Arizona; for Amicus Brief Tohono O'Odham Nation.

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Daniel P. Collins, Circuit Judges.

SUMMARY[*]

Appropriations

The panel affirmed the district court's judgment in an action brought by the Sierra Club and the Southern Border Communities Coalition (collectively the "Sierra Club") challenging the Department of Defense's budgetary transfers to fund construction of a wall on the southern border of the United States in California, New Mexico, and Arizona.

At issue is whether Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 ("Section 8005") authorized the budgetary transfers to fund construction of the wall.

The panel held that the Sierra Club had Article III standing to pursue its claims. Specifically, the panel held that Sierra Club's thousands of members live near and frequently visit areas along the U.S.-Mexico border for hiking, birdwatching, photography, and other professional, scientific, recreational, and aesthetic activities; and construction of a border wall and related infrastructure will acutely injure these interests because the Department of Homeland Security is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests. Additionally, the interests of Sierra Club's members in the lawsuit are germane to the organization's purpose. Similarly, the panel held that the Southern Border Communities Coalition alleged facts that support that it had standing to sue on behalf of itself and its member organizations. The panel further held that Sierra Club's injuries were fairly traceable to the Section 8005 transfers. In addition, the panel held that the injury to Sierra Club members and Southern Border Communities Coalition was likely to be redressed by a favorable judicial decision.

In companion appeal State of California v. Trump, Nos. 19-16299 and 19-16336, slip op. (9th Cir. June 26, 2020) (published concurrently), the panel held that Section 8005 did not authorize the transfers of funds at issue here. The panel reaffirmed this holding here.

The panel held that the Executive Branch lacked independent constitutional authority to authorize the transfer of funds. The panel noted that the Appropriations Clause of the U.S. Constitution exclusively grants the power of the purse to Congress. The panel held that the transfer of funds violated the Appropriations Clause, and, therefore, was unlawful.

The panel held that the Sierra Club was a proper party to challenge the Section 8005 transfers, and concluded that Sierra Club had both a constitutional and an ultra vires cause of action. First, the panel held that where plaintiffs, like Sierra Club, establish that they satisfy the requirements of Article III standing, they may invoke separation of powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority. Because the federal defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties, the panel held that Sierra Club had a constitutional cause of action. Second, the panel held that the Sierra Club had an equitable ultra vires cause of action to challenge the Department of Defense's transfer of funds. Where it is alleged that the Department of Defense has exceeded the statutory authority delegated by Section 8005, plaintiffs like Sierra Club can challenge this agency action.

The panel rejected the federal defendants' additional arguments. First, the federal defendants asserted that Sierra Club's challenge must be construed as an Administrative Procedure Act ("APA") claim, rather than as a constitutional or ultra vivres cause of action. The panel held that the APA is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action. Second, the federal defendants asserted that the zone of interests test must apply to any challenge brought by Sierra Club, and that Section 8005 prescribes the relevant zone of interests. The panel held that Sierra Club fell within the Appropriations Clause's zone of interests. The unconstitutional transfer of funds here infringed upon Sierra Club's members' liberty interests, harming their environmental, aesthetic, and recreational interests. The panel concluded that the Sierra Club had a cause of action to challenge the transfers.

Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. First, the panel agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent injunction. Second, the panel agreed with the district court that the balance of equities and the public interest favored injunctive relief. The panel held that the Supreme Court's decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), did not require the panel to vacate the injunction.

Judge Collins dissented. He agreed that at least the Sierra Club established Article III standing, but in his view the organizations lacked any cause of action to...

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