No. 19A-_____
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
APPLICANTS
v.
SIERRA CLUB, ET AL.
_______________
APPLICATION FOR A STAY PENDING APPEAL
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT AND PENDING
FURTHER PROCEEDINGS IN THIS COURT
AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________

 PARTIES TO THE PROCEEDING
The applicants (defendants-appellants below) are 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; Kevin K. McAleenan, in his official capacity as Acting
Secretary of Homeland Security; and Steven T. Mnuchin, in his
official capacity as Secretary of the Treasury. *
The respondents (plaintiffs-appellees below) are the Sierra
Club and the Southern Border Communities Coalition.
RELATED PROCEEDINGS
United States Court of Appeals (9th Cir.):
Sierra Club v. Trump, Nos. 19-16102 and 19-16300 (July 3,
2019)
United States District Court (N.D. Cal.):
Sierra Club v. Trump, No. 19-cv-892 (June 28, 2019)

The complaint named as official-capacity defendants
then-Acting Secretary of Defense Patrick M. Shanahan and thenSecretary of Homeland Security Kirstjen M. Nielsen.
Acting
Secretary Esper and Acting Secretary McAleenan were substituted as
defendants in the district court pursuant to Federal Rule of Civil
Procedure 25(d). See App., infra, 18a, 106a nn.1-2.
*

(I)

 IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 19A-_____
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
APPLICANTS
v.
SIERRA CLUB, ET AL.
_______________
APPLICATION FOR A STAY PENDING APPEAL
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT AND PENDING
FURTHER PROCEEDINGS IN THIS COURT
AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
_______________
Pursuant to Rule 23 of this Court and the All Writs Act,
28 U.S.C. 1651, the Solicitor General, on behalf of applicants
President Donald J. Trump et al., respectfully applies for a stay
of the injunction issued by the United States District Court for
the Northern District of California, pending the consideration and
disposition of the government’s appeal from that injunction to the
United States Court of Appeals for the Ninth Circuit and, if
necessary, pending the filing and disposition of a petition for a
writ of certiorari and any further proceedings in this Court.

In

addition, the Solicitor General respectfully requests an immediate
administrative

stay

of

the

injunction

consideration of this application.

pending

the

Court’s

 2
The district court enjoined the Department of Defense (DoD)
from undertaking any border-wall construction using approximately
$2.5 billion that the Acting Secretary of Defense transferred,
pursuant to express statutory authority, from other appropriation
accounts into the appropriation account that DoD uses to fund its
counternarcotic efforts, and a divided panel of the court of
appeals declined to stay the injunction pending appeal.

The sole

basis for the injunction -- that the Acting Secretary exceeded his
statutory

authority

in

transferring

misreading of the statutory text.
entered

at

the

behest

of

the

funds

--

rests

on

a

Moreover, the injunction was

private

parties

whose

asserted

recreational and aesthetic interests in the enjoyment of public
lands do not fall within the zone of interests protected by the
transfer statute, and who are thus not, in any event, proper
plaintiffs to sue to enforce the conditions in that statute.
Accordingly, this Court should stay the injunction.
The

Acting

Secretary

transferred

the

funds

at

issue

in

response to a request from the Department of Homeland Security
(DHS) for assistance in combatting the enormous flow of illegal
narcotics across the southern border.

The transferred funds will

be used to construct more than a hundred miles of fencing in areas
of the border.

Under 10 U.S.C. 284, DoD may provide support to

other federal agencies for “counterdrug activities” upon request. 1
All citations to Section 284 in this application refer
to the version codified as 10 U.S.C. 284 (Supp. V 2017).
1

 3
In particular, the statute specifies that DoD may provide support
for the “[c]onstruction of roads and fences

* * *

to block drug

smuggling corridors across international boundaries of the United
States.”

10 U.S.C. 284(b)(7).

The specific projects at issue

here would be undertaken in areas of the border that DHS has
identified as high priorities for drug-interdiction efforts, and
in which DHS has seized thousands of pounds of illegal drugs in
recent years.

No court has found that the proposed projects are

in any respect inconsistent with Section 284.
As

noted,

the

injunction

instead

rests

entirely

on

the

premises that (1) the Acting Secretary exceeded his statutory
authority in internally transferring funds to provide the support
that DHS had requested, and (2) respondents -- private parties who
assert that the proposed construction will impair their aesthetic
and recreational enjoyment of public lands -- are proper parties
to enforce the conditions on the Secretary’s transfer authority.
Both premises are demonstrably incorrect.
The relevant statute authorizes the Secretary to transfer
certain funds, but only to address “unforeseen” requirements, and
only

for

Congress.”

items

of

expenditure

not

previously

App., infra, 14a (citation omitted).

“denied

by

the

The courts below

concluded that Congress had “denied” this “item” in the relevant
sense (and that the requirement at issue was not “unforeseen”)
based on Congress’s decision to appropriate only $1.375 billion to

 4
DHS in 2019 for pedestrian fencing in a different sector of the
border, after protracted public negotiations.

But the statutory

text, context, and history make clear that the “unforeseen” and
“denied by the Congress” provisos refer to specific budget items
DoD proposes during the appropriations process.

Those terms do

not refer to a “border wall” writ large.
In

any

challenge

event,

the

respondents

Acting

are

Secretary’s

not

exercise

authority to transfer appropriated funds.
recreational

and

aesthetic

proper

interests

of

plaintiffs
his

to

statutory

Respondents’ asserted
--

in

drug-smuggling

corridors that already contain dilapidated vehicle and pedestrian
barriers -- are entirely unrelated to the interests protected by
the transfer statute, which governs DoD’s internal reallocation of
appropriated funds and says nothing at all about recreational or
aesthetic enjoyment of public lands.

To avoid that conclusion,

the panel majority in the court of appeals devoted the bulk of its
opinion to attempting to recast respondents’ claims -- which allege
in substance that the Acting Secretary exceeded his statutory
authority to transfer funds -- as constitutional claims, for which
(the majority reasoned) respondents need only fall within the zone
of interests protected by the Appropriations Clause, U.S. Const.,
Art. I, § 9, Cl. 7, rather than the statute.
flatly

inconsistent

Specter,

511

U.S.

with
462

this

(1994).

Court’s
The

That reasoning is

decision

majority’s

in

Dalton

approach

v.

also

 5
threatens to “turn[] every question of whether an executive officer
exceeded a statutory grant of power into a constitutional issue.”
App., infra, 76a (N.R. Smith, J., dissenting).
At a minimum, the lopsided balance of the equities favors
staying the injunction pending appeal.

Respondents’ interests in

hiking, birdwatching, and fishing in designated drug-smuggling
corridors do not outweigh the harm to the public from halting the
government’s efforts to construct barriers to stanch the flow of
illegal narcotics across the southern border.
According to DoD, under current law the funds at issue “will
no longer remain available for obligation after the fiscal year
ends on September 30, 2019.”
(First McFadden Decl.).

D. Ct. Doc. 146-2, ¶ 7 (May 29, 2019)

DoD has further stated that the ordinary

“contracting process necessary to completely obligate the full
value of the contracts” for these projects “is complex.”
see id. ¶¶ 8-9 (describing the contracting process).

Id. ¶ 8;

DoD has thus

stated that if it does not have “sufficient time available prior
to September 30” to fully obligate the funds, “the remaining
unobligated funds will become unavailable,” and DoD “will be unable
to complete the projects as planned.”

Id. ¶ 10; see p. 36 n.5,

infra (noting that DoD may have authority to waive otherwise
applicable requirements).

Therefore, DoD respectfully requests a

decision on this application by July 26, 2019, to maximize the
time DoD has to finalize contracts before September 30, 2019.

 6
STATEMENT
1.

This case arises from actions taken by DHS and DoD in

the wake of the President’s declaration of a national emergency on
the southern border under the National Emergencies Act, 50 U.S.C.
1601 et seq.

See 84 Fed. Reg. 4949 (Feb. 20, 2019).

In his

proclamation determining that “[t]he current situation at the
southern border presents a border security and humanitarian crisis
that threatens core national security interests” of the United
States, the President explained that the border is “a major entry
point” for “illicit narcotics.”

Ibid.; see also Memorandum on

Securing the Southern Border of the United States, 2018 Daily Comp.
Pres. Doc. 2 (Apr. 4, 2018) (directing DoD to “support [DHS] in
securing the southern border and taking other necessary actions to
stop the flow of deadly drugs”).

Hundreds of thousands of pounds

of illegal narcotics are smuggled into the United States from
Mexico

each

year

--

primarily

by

transnational

criminal

organizations, such as Mexican cartels. See, e.g., Office of Nat’l
Drug Control Policy, National Southwest Border Counternarcotics
Strategy 2-6 (May 2016), https://go.usa.gov/xyBZp.
On February 25, 2019, DHS submitted a request to DoD for DoD’s
assistance, pursuant to 10 U.S.C. 284, “with the construction of
fences[,] roads, and lighting” within 11 specified project areas,
“to

block

drug-smuggling

corridors

across

the

international

 7
boundary between the United States and Mexico.”

D. Ct. Doc.

64-8, Ex. A, at 2 (Apr. 25, 2019) (DHS Request); see id. at 3-9.
Under Section 284(a), the “Secretary of Defense may provide
support for the counterdrug activities

* * *

of any other

department or agency of the Federal Government,” if “such support
is requested

* * *

by the official who has responsibility for

the counterdrug activities.”

10 U.S.C. 284(a)(1)(A).

284(b) identifies the support DoD may provide.

Section

As relevant here,

DoD may assist in the “[c]onstruction of roads and fences and
installation of lighting to block drug smuggling corridors across
international
284(b)(7).

boundaries

of

the

United

States.”

10

U.S.C.

For decades, DoD personnel have helped to build and

reinforce border barriers on the southern border pursuant to this
authority and its predecessors.

See, e.g., H.R. Rep. No. 200,

103d Cong., 1st Sess. 330-331 (1993).
On March 25, 2019, the Acting Secretary of Defense approved
DHS’s request with respect to three projects, including two at
issue here:

“Yuma Sector Project 1” in Arizona and “El Paso Sector

Project 1” in New Mexico.

App., infra, 13a; see D. Ct. Doc.

64-8, Ex. B, at 1 (DoD Approval).

DHS had identified those

projects as among its highest priorities, based on the volume of
drug smuggling that occurs between ports of entry in those parts
of the border.

See DHS Request 4-5, 8-9.

In the Yuma Sector, for

example, DHS seized over 8000 pounds of marijuana, 1700 pounds of

 8
methamphetamine, 102 pounds of heroin, and 78 pounds of cocaine in
enforcement actions in fiscal year (FY) 2018.

Id. at 4; cf.

D. Ct. Doc. 146-1, ¶ 5 (May 29, 2019) (LeMaster Decl.) (comparable
numbers for FY 2019 to date).

The El Paso Sector is likewise

plagued by high rates of drug trafficking, and Mexican cartels
operate in both areas.

See DHS Request 8 (more than 300 pounds of

cocaine and 200 pounds of methamphetamine seized in FY 2018); cf.
LeMaster Decl. ¶ 4 (more than 200 pounds of methamphetamine seized
in FY 2019).

The Acting Secretary ultimately approved up to

$1 billion of DoD assistance, including assistance to replace
ineffective existing barriers in the Yuma and El Paso Sectors with
30-foot-high fencing, as DHS had requested.

App., infra, 13a; see

D. Ct. Doc. 64-8, Exs. E-F (revised barrier specifications).
To ensure adequate funds to complete the projects, the Acting
Secretary of Defense invoked his authority under Section 8005 of
the

Department

of

Defense

Appropriations

Act,

2019

(DoD

Appropriations Act), Pub. L. No. 115-245, Div. A, Tit. VIII,
132

Stat.

2999,

appropriations.

to

transfer

funds

internally

between

DoD

App., infra, 13a-14a; see D. Ct. Doc. 64-8,

Ex. C, at 1-2 (DoD Transfer Mem.).

Section 8005 provides that,

“[u]pon determination by the Secretary of Defense that such action
is necessary in the national interest,” the Secretary may “transfer
not to exceed $4,000,000,000 of
this

Act

to

[DoD]

for

* * *

military

funds made available in

functions

(except

military

 9
construction)

between

such

appropriations

or

funds

or

any

subdivision thereof, to be merged with and to be available for the
same purposes, and for the same time period, as the appropriation
or fund to which transferred.”
132 Stat. 2999.

DoD Appropriations Act § 8005,

Here, the Acting Secretary initially transferred

$1 billion in excess funds from Army personnel appropriations
accounts into the appropriation for DoD’s drug-interdiction and
counterdrug

support

activities,

including

DoD’s

provision

support to other federal agencies under 10 U.S.C. 284.

of

See DoD

Transfer Mem. 1; D. Ct. Doc. 64-8, ¶ 5 (Rapuano Decl.).
Section 8005 contains a proviso stating that funds may not be
transferred

under

that

provision

“unless

for

higher

priority

items, based on unforeseen military requirements,” and “in no case
where the item for which funds are requested has been denied by
the Congress.”

DoD Appropriations Act § 8005, 132 Stat. 2999.

The Acting Secretary of Defense determined that those limitations
were satisfied here, explaining that DoD’s need to provide this
counterdrug assistance to DHS pursuant to DHS’s February 2019
request was “unforeseen” at the time of DoD’s earlier budget
request and that Congress had never denied any request for funding
for DoD to provide this assistance.

DoD Transfer Mem. 1-2.

On May 9, 2019, the Acting Secretary of Defense approved DHS’s
request

for

support

additional projects:

under

Section

284

with

respect

to

four

“El Centro Project 1” in California and

 10
“Tucson Sector Project[s]” 1, 2, and 3 in Arizona.
118-1, Ex. A, at 1 (May 13, 2019).
DHS

had

identified

those

areas

D. Ct. Doc.

As with the prior projects,

as

significant

drug-smuggling

corridors, and the Acting Secretary authorized DoD to provide up
to $1.5 billion in support to DHS for 30-foot-high fencing as well
as roads and lighting.
this

support,

the

Ibid.; see DHS Request 3, 5-7.

Acting

Secretary

transferred

an

To fund

additional

$1.5 billion from various excess appropriations, invoking both
Section 8005 and Section 9002 of the DoD Appropriations Act. App.,
infra, 17a.

Section 9002 permits the Secretary to “transfer up to

$2,000,000,000 between the appropriations or funds made available”
in Title IX of the DoD Appropriations Act.
§ 9002, 132 Stat. 3042.

DoD Appropriations Act

That authority is “in addition to any

other transfer authority” but is “subject to the same terms and
conditions as the authority provided in [S]ection 8005.”
2.

Ibid.

Respondents -- the Sierra Club, a national environmental

group, and the Southern Border Communities Coalition, an advocacy
organization focused on border issues -- brought this action in
the Northern District of California on February 19, 2019, seeking
declaratory and injunctive relief from actions the United States
has taken to construct physical barriers along the southern border,
including the actions described above.
108, 185-189; see App., infra, 18a.

Am. Compl. ¶¶ 11, 16, 104-

On April 4, 2019, respondents

moved for a preliminary injunction, alleging that the intended

 11
construction would impair their members’ “use and enjoyment of the
areas” where the projects would occur.
3.

D. Ct. Doc. 29, at 5.

The district court issued a preliminary injunction on

May 24, 2019 (App., infra, 120a-175a), and a permanent injunction
on June 28, 2019 (id. at 106a-116a).

The sole basis for both

injunctions was the court’s conclusion that Section 8005 did not
authorize the internal transfers made by the Acting Secretary of
Defense to fund the disputed projects.
a.

In issuing its first injunction, the district court

determined

that

it

“ha[d]

authority

to

review

each

of

[respondents’] challenges” pursuant to the court’s equitable power
to enjoin public officials from violating federal law, rather than
under

a

specific

grant

of

statutory

authority,

such

Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.

as

the

App.,

infra, 147a (citing Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378, 1384 (2015)).

The court concluded, on that basis,

that respondents need not demonstrate that their claims “fall
within the ‘zone of interests’” protected by Section 8005, because
the court viewed that threshold requirement as applicable only “to
statutorily-created causes of action.”

Id. at 148a.

The district court also found that respondents were likely to
show that Section 8005 did not permit DoD to transfer the funds at
issue.

The court reasoned that Congress had “denied” funds for

the projects within the meaning of Section 8005’s proviso, see

 12
p. 9, supra, when Congress appropriated only $1.375 billion to DHS
in February 2019 for the construction of fencing in the Rio Grande
Valley.

App.,

infra,

152a-153a;

see

Department

of

Homeland

Security Appropriations Act, 2019, Pub. L. No. 116-6, Div. A,
Tit. II, § 230, 133 Stat. 28.

The court also reasoned that DoD’s

need to provide assistance to DHS was not “‘unforeseen’” (as
required for a Section 8005 transfer) because, even though DHS had
not requested DoD’s support under Section 284 until February 2019,
the “government as a whole” had made other funding requests for
border-wall construction since early 2018.

App., infra, 155a.

Finally, the district court concluded that respondents had
demonstrated irreparable injury “to their members’ aesthetic and
recreational interests” in the areas where construction would
occur.
as

App., infra, 168a.

outweighing

characterized

the
as

The court viewed those putative harms

government’s
“border

interests,

security

and

which

the

court

immigration-law

enforcement,” id. at 173a, rather than drug interdiction.
The district court enjoined DoD, DHS, and the Department of
the Treasury from “taking any action to construct a border barrier
* * *

using funds reprogrammed by DoD under Section 8005,” App.,

infra, 174a, in the two project areas -- Yuma Sector Project 1 and
El Paso Sector Project 1 -- first approved by the Acting Secretary.
The

court

later

denied

the

government’s

preliminary injunction pending appeal.

request

to

stay

Id. at 118a-119a.

the

 13
b.

On June 28, 2019, the district court issued a permanent

injunction covering the same projects as the first injunction,
along with the later-approved projects in the El Centro and Tucson
Sectors.

App., infra, 115a.

The court “incorporate[d]” its prior

reasoning on the zone of interests and Section 8005, and it did
not identify any new basis for the injunction.
court

also

warranted.

concluded

that

permanent

Id. at 111a-113a.

injunctive

relief

The
was

As before, the court declined to

stay the injunction pending appeal.
4.

Id. at 109a. 2

Id. at 107a.

On May 29, 2019, applicants noticed an appeal from the

preliminary injunction.

D. Ct. Doc. 145.

On June 3, 2019,

applicants filed an emergency motion in the Ninth Circuit for a
stay of the injunction pending appeal.

App., infra, 22a.

Although applicants did not request an administrative stay,
they requested that the court of appeals issue a decision on the
stay request by June 17, 2019.

Gov’t C.A. Emergency Stay Mot.,

Circuit Rule 27-3 Certificate 3.

DoD had explained that the funds

at issue “will no longer remain available for obligation after the
fiscal year ends on September 30, 2019.”

First McFadden Decl.

¶ 7; see DoD Appropriations Act § 8003, 132 Stat. 2998 (“No part
of any appropriation contained in this Act shall remain available
The Acting Secretary had invoked Section 8005 and
Section 9002 of the DoD Appropriations Act to transfer funds for
the El Centro and Tucson projects. App., infra, 108a-109a. As
the district court explained, however, Section 9002 “is subject to
Section 8005’s substantive requirements,” and the court treated
the two as interchangeable for these purposes. Id. at 109a.
2

 14
for obligation beyond the current fiscal year, unless expressly so
provided.”). DoD had also explained that the “complex” contracting
process for these projects requires sufficient time to complete
before funds may be fully obligated.

First McFadden Decl. ¶ 8.

After briefing and oral argument in the court of appeals, the
district

court

immediately

issued

noticed

its

an

permanent-injunction

permanent

appeal,

appeal

injunction.

moved

with

to

the

Applicants

consolidate
pending

the

new

preliminary-

injunction appeal, and requested that the court of appeals stay
the permanent injunction on the basis of the briefing and argument
it had already received.

See App., infra, 25a.

The court of

appeals granted the motion to consolidate the two appeals.
5.

Ibid.

On July 3, 2019, a divided panel of the court of appeals

declined to stay the permanent injunction.
a.

The

majority

agreed

with

the

App., infra, 1a-75a.
district

court

that

respondents need not demonstrate that their putative recreational
and aesthetic interests fall within the zone of interests protected
by Section 8005, although for different reasons.

App., infra,

58a-68a.

The majority recognized that respondents’ challenge

“turns

a

on

question

of

statutory

interpretation”

concerning

Section 8005. Id. at 35a. Nonetheless, the majority characterized
respondents’ claims as “alleging a constitutional violation,” id.
at 32a, on the theory that any use of DoD funds transferred
improperly under Section 8005 would “cause funds to be ‘drawn from

 15
the Treasury’ not ‘in Consequence of Appropriations made by Law,’”
in violation of the Appropriations Clause, id. at 45a (quoting
U.S. Const., Art. I, § 9, Cl. 7).

The majority acknowledged this

Court’s admonishment in Dalton v. Specter, 511 U.S. 462 (1994),
that “claims simply alleging that the President has exceeded his
statutory authority are not ‘constitutional’ claims,” id. at 473,
but it distinguished Dalton and related cases as not addressing
“the constitutional implications of violating statutes, such as
[S]ection 8005, that authorize executive action contingent on
satisfaction of certain requirements,” App., infra, 50a.
From that premise, the majority reasoned that respondents
“either

have

an

constitutional

equitable

violation,

cause
or

of

they

constitutional claims under the [APA].”
at 45a-55a.

action

can

to

proceed

enjoin
on

a

their

App., infra, 4a; see id.

After questioning whether the “zone of interests test

applies” at all, id. at 63a, the majority concluded that, “[t]o
the extent” the test applies to respondents’ claims, “it requires
[the court] to ask whether [respondents] fall within the zone of
interests of the Appropriations Clause, not of [S]ection 8005,”
id. at 65a.

The court found that test satisfied, reasoning that

respondents’

claimed

aesthetic

and

recreational

interests

are

within the zone of interests protected by the Appropriations
Clause, based on nothing more than respondents’ assertion that

 16
those

interests

will

unconstitutional spending.”

be

impaired

by

the

“allegedly

Id. at 66a, 67a.

The majority also agreed with the district court that Section
8005 likely did not permit the disputed transfers, based on the
same two conditions -- i.e., that the transfer must be for higher
priority items based on “unforeseen military requirements” and
must not be for an “item” previously “denied by the Congress,” DoD
Appropriations Act § 8005, 132 Stat. 2999.
39a.

See App., infra, 36a-

The majority assumed that DoD “could not have anticipated

that DHS would request [the] specific support” for which the Acting
Secretary of Defense had transferred funds.

Id. at 36a.

But the

majority understood the “‘requirement’” at issue under Section
8005 to be “a border wall,” not DHS’s specific request for support,
and the majority found it “not credible” that DoD failed to foresee
during the budgeting process that it would need funds “to build a
border barrier,” given the President’s protracted negotiations
with Congress over that issue.

Id. at 37a.

The majority likewise

concluded that Congress had “considered the ‘item’ at issue here”
-- in the majority’s view, “a physical barrier along the entire
southern border” -- and had denied funds for that “item” beyond
the specific amounts appropriated separately to DHS.

Id. at 39a.

Finally, the majority determined that “[t]he public interest
and the balance of hardships do not support granting the motion to
stay.”

App., infra, 75a.

 17
b.
appeal.

Judge N.R. Smith would have granted a stay pending
App., infra, 76a-105a.

In his view, the majority had

“created a constitutional issue where none previously existed” and
had embarked on “an uncharted and risky approach” that would
“turn[] every question of whether an executive officer exceeded a
statutory grant of power into a constitutional issue.”
76a.

Id. at

As he explained, this Court’s decision in Dalton “clarified

the distinction between ‘claims of constitutional violations and
claims that an official has acted in excess of his statutory
authority,’” id. at 80a (quoting Dalton, 511 U.S. at 472), and
respondents’ claim is fundamentally the latter -- a challenge that
“entirely rises or falls on whether the DoD complied with the
limitations in [Section] 8005,” id. at 81a; see id. at 86a (“[N]o
claim of a constitutional violation exists in this case.”).
Judge Smith further explained that, “[w]hen their claim is
properly viewed as alleging a statutory violation, [respondents]
have no mechanism to challenge [DoD’s] actions.”

App., infra,

79a. Section 8005 itself does not, he observed, create any implied
private cause of action.

Id. at 86a-87a.

And while the APA could

be a “proper vehicle for challenging the DoD’s [Section] 8005
reprogramming,” Judge Smith concluded that respondents “are not a
proper party to bring such a claim, as they fall outside [Section]
8005’s zone of interests.”

Id. at 87a-88a; see id. at 92a (“The

relevant zone of interests is not that of the APA itself, but

 18
rather the zone of interests to be protected or regulated by the
statute that the plaintiff says was violated.”) (brackets and
citations omitted).
authorize

the

In his view, “Section 8005 operates only to

Secretary

of

Defense

to

transfer

previously-

appropriated funds between DoD accounts,” and “[n]othing” in the
statute “requires that aesthetic, recreational, or environmental
interests be considered before a transfer is made, nor does the
statute even address such interests.”

Id. at 94a.

And because

APA review is available for a proper plaintiff, Judge Smith would
have held that the court “cannot save [respondents’] claim by
fashioning an ‘equitable’ work-around to assert a constitutional
claim, as the majority has done.”
That

work-around,

he

Id. at 95a; see id. at 94a-99a.

explained,

“distort[s]

decades

of

administrative law practice” and will invite “future plaintiffs
[to] simply challeng[e] any agency action ‘equitably,’ thereby
avoiding the APA’s limited judicial review.”

Id. at 98a.

Judge Smith also disagreed with the majority’s view of the
balance of hardships.

App., infra, 99a-105a.

“drug trafficking along our southern border

He reasoned that

* * *

threatens the

safety and security of our nation and its citizens,” and that the
public interest favors permitting DoD to effectuate a policy it
has determined to be “necessary to minimize that threat” while the
appellate process plays out.

Id. at 102a; see id. at 105a.

 19
ARGUMENT
Under Rule 23 of this Court and the All Writs Act, 28 U.S.C.
1651, a single Justice or the Court may stay a district-court order
pending appeal to a court of appeals.

See, e.g., Trump v.

International Refugee Assistance Project, 137 S. Ct. 2080, 2083
(2017) (per curiam); West Virginia v. EPA, 136 S. Ct. 1000, 1000
(2016).

“In considering stay applications on matters pending

before the Court of Appeals, a Circuit Justice” considers three
questions:

first, the Justice must “try to predict whether four

Justices would

vote

to

grant

certiorari”

if

the

court

below

ultimately rules against the applicant; second, the Justice must
“try to predict whether the Court would then set the order aside”;
and third, the Justice must “balance the so-called stay equities,”
San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson,
548 U.S. 1301, 1302 (2006) (Kennedy, J., in chambers) (citation
and internal quotation marks omitted), by determining “whether the
injury asserted by the applicant outweighs the harm to other
parties or to the public,” Lucas v. Townsend, 486 U.S. 1301, 1304
(1988) (Kennedy, J., in chambers); see Hilton v. Braunskill,
481 U.S. 770, 776 (1987) (stay factors). All those factors counsel
strongly in favor of a stay here.

An interim administrative stay

is also warranted while this application is pending.
1.

If the Ninth Circuit affirms the injunction, this Court

is likely to grant review.

As Judge Smith explained in his

 20
dissenting opinion, the decision below “is flatly contradicted” by
this Court’s decision in Dalton v. Specter, 511 U.S. 462 (1994).
App., infra, 80a.
may

pursue

a

The panel majority concluded that respondents

constitutional

claim

for

a

violation

of

the

Appropriations Clause, premised entirely on the allegation that
the Acting Secretary of Defense violated Section 8005 of the DoD
Appropriations

Act

by

transferring

excess

funds

to

the

appropriation used to fund DoD’s provision of counterdrug support
activities under 10 U.S.C. 284.

See, e.g., App., infra, 35a.

But

Dalton teaches that “claims that an official exceeded his statutory
authority” are not constitutional claims.
pp. 26-29,
warranted

infra
to

(discussing

correct

the

Dalton).

Ninth

511 U.S. at 474; see
Review

Circuit’s

would

failure

to

thus

be

adhere

faithfully to this Court’s precedent.
Review would also be warranted given the significance of the
questions presented.
commonplace.

Transfer statutes like Section 8005 are

See, e.g., Michelle D. Christensen, Cong. Research

Serv., Transfer and Reprogramming of Appropriations 3-4 (June
2013); U.S. Gov’t Accountability Office, Principles of Federal
Appropriations Law 2-39 to 2-40 (4th ed. 2016) (GAO Redbook). They
reflect Congress’s longstanding judgment that the Executive Branch
must have some flexibility to redirect appropriations during “the
lengthy and overlapping cycles of the budget process,” GAO Redbook
2-44 (citation omitted), in light of unforeseen events or changed

 21
priorities.

If a private party could sue to enjoin the exercise

of such a transfer provision without demonstrating that the party
falls within the zone of interests protected by the statute, the
courthouse doors would be open to a wide variety of challenges
that Congress never contemplated and that the APA does not permit.
More broadly, the decision below threatens to “turn our current
system of administrative review on its head” by transforming
garden-variety statutory challenges into constitutional claims.
App., infra, 85a (N.R. Smith, J., dissenting).
Finally, the practical significance of the decision below for
the government’s drug-interdiction efforts would weigh strongly in
favor of further review.
dissenting).

See App., infra, 105a (N.R. Smith, J.,

The decision prevents DoD from taking steps to

support DHS that the Acting Secretary of Defense determined to be
“necessary

in

the

national

interest,”

DoD

Appropriations

Act

§ 8005, 132 Stat. 2999, to stanch the flow of illegal drugs across
the southern border.

The support DoD seeks to provide, pursuant

to its express authority in 10 U.S.C. 284(b)(7), would permit the
construction of more than 100 miles of pedestrian fencing in areas
identified by DHS as drug-smuggling corridors, where DHS has seized
thousands

of

pounds

of

heroin,

cocaine,

between ports of entry in recent years.
2.

and

methamphetamine

See DHS Request 3-9.

A stay is also warranted because, if the Ninth Circuit

affirms and this Court grants review, there is at least a “fair

 22
prospect” that this Court will vacate the injunction.
486 U.S. at 1304 (Kennedy, J., in chambers).

Lucas,

Respondents are not

within the zone of interests protected by Section 8005.

Neither

the panel majority nor the district court disputed that point, and
the “work-around[s]” they devised for respondents to circumvent
that fatal defect do not withstand scrutiny.
(N.R. Smith, J., dissenting).

App., infra, 95a

Moreover, the transfers authorized

by the Acting Secretary of Defense plainly satisfied Section 8005.
DHS’s

request

to

DoD

for

support

under

10

U.S.C.

284

was

“unforeseen” at the time of DoD’s budget requests, and Congress
never previously “denied” funding for that particular “item” of
expenditure.

DoD Appropriations Act § 8005, 132 Stat. 2999.

The

panel majority erred in reading those terms in the DoD transfer
statute to encompass “border barrier funding” (App., infra, 36a)
generally, rather than to refer to specific items in DoD’s budget.
a.

This Court “presume[s] that a statutory cause of action

extends only to plaintiffs whose interests ‘fall within the zone
of interests protected by the law invoked.’”

Lexmark Int’l, Inc.

v. Static Control Components, Inc., 572 U.S. 118, 129 (2014)
(citation omitted).

That limitation reflects the common-sense

intuition that Congress does not intend to extend a cause of action
to “plaintiffs who might technically be injured in an Article III
sense

but

whose

interests

are

unrelated

to

the

statutory

 23
prohibitions”

they

seek

to

enforce.

Thompson

v.

North

Am.

Stainless, LP, 562 U.S. 170, 178 (2011).
To apply this requirement, the Court uses “traditional tools
of statutory interpretation” to discern “whether a legislatively
conferred cause of action encompasses a particular plaintiff’s
claim.”

Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302-

1303 (2017) (quoting Lexmark, 572 U.S. at 127).

If the plaintiff

invokes the APA to challenge compliance with another statute, the
“interest he asserts must be ‘arguably within the zone of interests
to be protected or regulated by the statute’ that he says was
violated.”

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

v. Patchak, 567 U.S. 209, 224 (2012) (citation omitted). 3
The government is likely to succeed in demonstrating that
respondents are not within the zone of interests protected by
Section 8005.

Section 8005 authorizes the Secretary of Defense to

“transfer not to exceed $4,000,000,000” of certain funds between
“appropriations or funds

* * *

to be merged with and to be

available for the same purposes, and for the same time period, as
Respondents did not plead an APA claim, but the panel
majority nonetheless construed their complaint as raising a claim
“cognizable under the APA” as an alternative to an equitable claim
to enjoin a violation of federal law. App., infra, 53a. Those
claims are not permissible alternatives. The availability of an
express cause of action under the APA precludes judicial resort to
any implied equitable cause of action. See id. at 93a-99a (N.R.
Smith, J., dissenting); Gov’t C.A. Supp. Br. 16-18. Regardless,
for reasons discussed below, see pp. 29-30, infra, Section 8005
provides the relevant zone of interests for respondents’ claims,
however characterized.
3

 24
the appropriation or fund to which” the transfer is made, if the
Secretary

determines

that

the

transfer

“is

necessary

in

the

national interest.” DoD Appropriations Act § 8005, 132 Stat. 2999.
The statute provides that the Secretary’s transfer authority “may
not be used unless for higher priority items, based on unforeseen
military requirements, than those for which [the transferred funds
were] originally appropriated and in no case where the item for
which funds are requested has been denied by the Congress.”

Ibid.

It also requires the Secretary to “notify the Congress promptly of
all

transfers

made

pursuant

authority in this Act.”

to

this

authority

or

any

other

Ibid.

Nothing in the text of Section 8005 suggests that Congress
intended to permit enforcement of the statute’s limitations by
plaintiffs, like respondents, who assert that a transfer would
indirectly result in harm to their recreational or aesthetic
interests in public lands.

The statute does not even “arguably”

protect those interests.

Lexmark, 572 U.S. at 130 (citation

omitted).

It does not require the Secretary to consider aesthetic

or recreational interests before transferring funds, nor does it
regulate or limit DoD’s use of public lands or DoD’s authority to
undertake any construction.

Instead, it empowers the Secretary of

Defense

from

to

transfer

funds

one

appropriation

enacted

by

Congress to another such appropriation, to be used for the purposes
Congress authorized in that appropriation -- including, as here,

 25
providing counterdrug support to DHS.

Even if the limits on the

Secretary’s transfer authority might arguably protect some private
“economic interests,” respondents assert no such interests here.
App., infra, 94a (N.R. Smith, J., dissenting). And the Secretary’s
authority is conditioned on judgments that courts are ill-suited
to second-guess -- for example, that the transfer is “necessary”
for the “national interest,” and that it is for a “higher priority”
item of defense spending. DoD Appropriations Act § 8005, 132 Stat.
2999;

see

Ziglar

v.

Abbasi,

137

S.

Ct.

1843,

1861

(2017)

(cautioning that courts should be “reluctant to intrude upon the
authority of the Executive in military and national security
affairs”) (citation omitted).
To the extent that Section 8005 expressly contemplates any
form of enforcement, it is congressional oversight -- hence the
requirement that the Secretary notify Congress of any transfer.
The legislative history confirms as much.

When Congress first

gave the Secretary of Defense this transfer authority, a committee
report explained that legislators imposed conditions on it to
“tighten congressional

control

of

the

reprogramming

process.”

H.R. Rep. No. 662, 93d Cong., 1st Sess. 16 (1973) (emphasis added).
If Congress disagrees with a particular transfer under Section
8005, it has the necessary tools to address the problem itself.
b.
instead,

The panel majority disputed none of this.
that

respondents’

challenge

“at

It concluded,

its

core”

is

 26
constitutional, not statutory, and that, “[t]o the extent any zone
of interests test applies,” respondents’ asserted interests need
only “fall within the zone of interests of the Appropriations
Clause.”

App., infra, 32a, 65a.

That conclusion is flawed in

multiple respects.
The

majority’s

attempt

to

recast

respondents’

claims

as

sounding in the Constitution is flatly contrary to this Court’s
decision in Dalton.

There, the plaintiffs “sought to enjoin the

Secretary of Defense

* * *

from carrying out a decision by the

President” to close a military facility under the Defense Base
Closure and Realignment Act of 1990, Pub. L. No. 101-510, Div. B,
Tit. XXIX, Pt. A, 104 Stat. 1808.
court

of

appeals

had

permitted

Dalton, 511 U.S. at 464.
the

suit

to

proceed

on

The
the

assumption that the plaintiffs were effectively seeking “review
[of] a presidential decision.”

Id. at 467 (citation omitted).

After this Court held that the President is not an “agency” for
APA purposes, see id. at 468 (discussing Franklin v. Massachusetts,
505 U.S. 788 (1992)), the court of appeals adhered to its decision
on constitutional grounds.

In particular, the court reasoned,

based on Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952),

“that

statutory

whenever

authority,

the
he

President
also

separation-of-powers doctrine.”

acts

violates

in
the

excess

of

his

constitutional

Dalton, 511 U.S. at 471.

 27
This Court unanimously rejected that logic, explaining that
not

“every

action

by

the

President,

or

by

another

executive

official, in excess of his statutory authority is ipso facto in
violation of the Constitution.” Dalton, 511 U.S. at 472. Instead,
this

Court

has

carefully

“distinguished

between

claims

of

constitutional violations and claims that an official has acted in
excess of his statutory authority.”

Ibid. (collecting cases).

The Constitution is implicated if executive officers rely on it as
an independent source of authority to act, as in Youngstown, supra,
or if the officers rely on a statute that itself violates the
Constitution.

See Dalton, 511 U.S. at 473 & n.5.

But claims

alleging simply that an official has “exceeded his statutory
authority are not ‘constitutional’ claims.”
Although

Dalton

involved

a

Id. at 473.

challenge

to

the

Executive’s

exercise of statutory authority to close military bases rather
than to transfer military funds, its reasoning fully applies here.
This

dispute

concerns

“simply”

whether

the

Acting

Secretary

“exceeded his statutory authority” in authorizing the disputed
transfers under Section 8005, and “no constitutional question
whatever is raised,” “only issues of statutory interpretation.”
Dalton, 511 U.S. at 473-474 & n.6 (citations and internal quotation
marks

omitted).

The

Acting

Secretary

did

not

invoke

the

Constitution as a basis to transfer funds, and respondents do not
allege

that

Section

8005

violates

any

provision

of

the

 28
Constitution. Thus, “no claim of a constitutional violation exists
in this case.”

App., infra, 86a (N.R. Smith, J., dissenting).

The panel majority attempted to distinguish Dalton on the
ground that the decision did not address “the constitutional
implications of violating statutes, such as [S]ection 8005, that
authorize executive action contingent on satisfaction of certain
requirements.”

App., infra, 50a.

The majority failed to explain

why that supposed distinction matters; at all events, the question
is whether the executive official’s actions complied with the
statute.
not

The majority also asserted that respondents’ claims do

allege

officials

merely
“lack

a

any

statutory
background

violation

because

constitutional

executive

authority

appropriate funds” in the absence of statutory authority.
51a.

But

that

is

precisely

backwards.

It

is

to

Id. at

because

the

challenged agency action here depends on a statutory grant of
authority, rather than a constitutional one, that respondents’
claims must be construed as statutory under Dalton.
The majority’s approach threatens to upend judicial review in
the Ninth Circuit, inviting courts “to deem unconstitutional any
reviewable executive actions
of authority.”

* * *

that exceed a statutory grant

App., infra, 85a-86a (N.R. Smith, J., dissenting).

For example, the majority identified no reason that its decision
would not apply equally to a plaintiff challenging the collection
of

federal

tax.

Executive

officials

“lack

any

background

 29
constitutional authority,” id. at 51a, to impose taxes in the
absence of statutory authority, and yet a challenge to statutory
tax liability is not “ipso facto” a constitutional claim, Dalton,
511 U.S. at 472.

By the same logic, any party challenging an

agency regulation could re-characterize its claim as sounding in
the Constitution, on the theory that executive agencies generally
“lack

any

legislative

background
rules

and

permitted by statute.

constitutional
instead

may

authority”
do

so

only

to
to

promulgate
the

extent

That cannot be correct.

Moreover, even if respondents’ challenge could be viewed as
resting in part on the Appropriations Clause, Section 8005 would
still prescribe the relevant zone of interests that respondents
must satisfy.

The zone-of-interests requirement must be applied

“by reference to the particular provision of law upon which the
plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175-176 (1997).
The Appropriations Clause provides that appropriations must be
“made by Law,” U.S. Const., Art. I, § 9, Cl. 7, and respondents do
not dispute that the obligation of funds properly transferred under
Section 8005 would satisfy that requirement.
only

whether

the

transfer

was

proper;

Respondents contest

their

“constitutional”

claim, as the panel majority acknowledged, “turns on a question of
statutory interpretation.”

App., infra, 35a.

Because a violation

of Section 8005’s limitations is thus a necessary element of their
claim,

Section

8005,

not

the

Appropriations

Clause,

is

the

 30
“provision

whose

violation

forms

the

legal

basis

for

[the]

complaint,” Bennett, 520 U.S. at 176 (quoting Lujan v. National
Wildlife Fed’n, 497 U.S. 871, 883 (1990)) (emphasis omitted), and
respondents’ asserted interests must fall within the zone of
interests

protected

by

Section

8005

to

maintain

this

suit.

Respondents fail that requirement.
The panel majority was also wrong to suggest that the zoneof-interests requirement does not apply at all to “constitutional
claims” or to an “equitable cause of action.”

App., infra, 62a-

63a; cf. id. at 148a-149a (district court’s similar reasoning).
The zone-of-interests requirement is “of general application,”
Lexmark, 572 U.S. at 129 (quoting Bennett, 520 U.S. at 163), to
all causes of action authorized by Congress. It reflects a general
presumption about which plaintiffs Congress intended to allow to
bring suit in federal court.

This Court’s statement in Lexmark

that the requirement applies to all “statutorily created” causes
of action, ibid., encompasses implied causes of action to enjoin
constitutional or statutory violations.

Those causes of action

are “the creation of courts of equity,” Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), and are subject to
“express and implied statutory limitations,” id. at 1385.
equitable

powers

that

the

lower

federal

courts

And the

exercise

are

themselves conferred by statute. See Grupo Mexicano de Desarrollo,
S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (citing

 31
the statutory grant of equity jurisdiction).

Lexmark therefore

did not silently abrogate this Court’s precedents recognizing that
the zone-of-interests requirement applies to equitable actions
seeking to enjoin constitutional violations.

See, e.g., Valley

Forge Christian Coll. v. Americans United for Separation of Church
&

State,

Inc.,

454

U.S.

464,

469,

475

(1982)

(Establishment

Clause); Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320
n.3 (1977) (Dormant Commerce Clause). 4
In sum, respondents are not within the zone of interests
protected by Section 8005.

The panel majority’s effort to avoid

that conclusion is inconsistent with Dalton, wrong in principle,
and unlikely to survive this Court’s review.
c.
the

This Court is also likely to vacate the injunction for

independent

reason

that

complied with Section 8005.

the

Acting

Secretary

of

Defense

When Congress appropriated funds to

DoD for FY 2019, it expressly authorized the Secretary of Defense
to transfer some of those funds under Section 8005, provided that
the transfer is “for higher priority items, based on unforeseen
military requirements,” and that the “item for which funds are
The decisions cited by the panel majority are not to the
contrary. App., infra, 60a-61a (discussing Youngstown, supra, and
Clinton v. City of New York, 524 U.S. 417 (1998)). Neither case
addressed the zone-of-interests requirement, and the plaintiffs in
those cases would have easily satisfied the requirement had it
been disputed. In City of New York, for example, the plaintiffs
challenged the President’s purported cancellation of statutes
conferring financial benefits for which the plaintiffs were
eligible. See 524 U.S. at 426-427.
4

 32
requested” was not previously “denied by the Congress.”
Appropriations Act § 8005, 132 Stat. 2999.

DoD

The transfers at issue

here did not transgress those bounds.
The panel majority’s contrary view rests on a misreading of
the statutory text.

The majority, echoing the district court,

concluded that DoD had transferred funds for an “item” that had
been

denied

by

Congress

and

that

the

transfer

was

for

a

“requirement” DoD should have foreseen, because the President and
other agencies had previously requested border-wall appropriations
that Congress had declined to provide in full.
The

majority

thus

construed

the

App., infra, 37a.

relevant

“‘requirement’” to be “a border wall” writ large.

“‘item’”
Ibid.

and

But the

text does not have such a broad sweep.
Read in context, Section 8005’s reference to an “item for
which funds are requested” means a particular budget line-item
requiring

additional

funding

beyond

appropriation for the fiscal year.

the

amount

in

the

DoD

During the budgeting process,

DoD requests funding from Congress for budget line-items, and
Congress appropriates funds in light of those requests. See, e.g.,
H.R. Rep. No. 952, 115th Cong., 2d Sess. 452 (2018) (noting the
House-, Senate-, and conference-committee determinations regarding
DoD’s requests for items to be funded by the appropriation for
“Drug Interdiction and Counter-Drug Activities, Defense”).

The

proviso in Section 8005 operates only to prevent DoD from using

 33
its general authority to transfer or reprogram funds to circumvent
those congressional choices, by shifting funds to pay for budget
items that “ha[d] been specifically deleted in the legislative
process.”

H.R. Rep. No. 662, at 16.

The proviso does not forbid

DoD from transferring funds for a different “item” that a different
agency asked different congressional committees to fund.

And it

is undisputed that Congress never denied any request by DoD for
appropriations to fund construction under Section 284 in these (or
any other) project areas.
The Acting Secretary also reasonably determined that the
transfers were for “higher priority items, based on unforeseen
military requirements,” DoD Appropriations Act § 8005, 132 Stat.
2999.

DoD Transfer Mem. 1-2.

As he explained, DoD’s “need to

provide support” to DHS for these projects was “not known at the
time of [DoD’s] FY 2019 budget request.”

Ibid.

The FY 2019 budget

was submitted to Congress in February 2018, see D. Ct. Doc. 36,
¶ 18 (Apr. 4, 2019), and Congress enacted the DoD Appropriations
Act in September 2018, 132 Stat. 2981.

DHS did not request support

from DoD under Section 284 until February 2019, App., infra, 13a,
and DoD may undertake counterdrug support pursuant to Section 284
only upon receiving a request from another agency.

Moreover, DoD

could not have foreseen that other appropriations in the DoD
Appropriations

Act

would

prove

to

be

in

excess

of

military

requirements -- for example, because of lower than anticipated

 34
personnel spending levels -- thus further affecting the agency’s
relative priorities.
3.

See DoD Transfer Mem. 1-2.

The balance of equities tips decidedly in favor of a

stay pending appeal.
dissenting).

See App., infra, 87a-105a (N.R. Smith, J.,

The Court should also grant an administrative stay

pending the disposition of this application.
a.
DoD’s

The harm to the government and the public from enjoining
use

significant.

of

the

transferred

funds

during

litigation

is

The injunction frustrates the government’s ability

to stop the flow of drugs across the border in known drug-smuggling
corridors.

DHS identified the project areas at issue because of

the high rates of drug smuggling between ports of entry in those
areas of the border.

The record includes ample evidence of both

the severity of the problem and the limited effectiveness of the
existing

barriers

in

the

areas,

which

transnational

organizations have adjusted their tactics to evade.
10, supra.

criminal

See pp. 7-

The public would therefore benefit from a stay during

litigation, to “permit[] [the government] to effect the policies
it has determined are necessary.”

App., infra, 102a (N.R. Smith,

J., dissenting); cf. National Treasury Emps. Union v. Von Raab,
489 U.S. 656, 672 (1989) (recognizing the government’s “compelling
interests in safety and in the integrity of our borders”).
The district court did not even consider the government’s
compelling

interest

in

drug

interdiction

when

framing

its

 35
injunctions,

characterizing

the

relevant

interest

“border security and immigration-law enforcement.”
173a; see id. at 112a.

instead

as

App., infra,

The court’s failure to afford “[a] proper

consideration” to the public interest, Winter v. NRDC, Inc.,
555 U.S. 7, 23 (2008), and its “cursory” balancing of the equities,
id. at 26, were among the government’s main claims of error in
seeking a stay in the court of appeals.
Mot. 18-21.

Gov’t C.A. Emergency Stay

The panel majority overlooked that problem and,

indeed, faulted the government for the absence of factual findings
on “the impact of building the [proposed] barriers” on drug flows.
App.,

infra,

70a.

In

the

majority’s

view,

the

record

was

insufficient to conclude that the proposed projects would serve
the public interest:

“If these specific leaks [in the border] are

plugged, will the drugs flow through somewhere else?”

Ibid.

No sound principle of equity requires such defeatism. Section
284(b)(7)

reflects

an

evident

judgment

by

Congress

that

the

construction of fencing can meaningfully reduce drug smuggling
across the southern border, DoD and DHS support that judgment and
have determined that these specific projects are in the public
interest, and the panel majority’s speculation that the fencing
will be an imperfect solution does not counsel against a stay.
The government also stands to suffer additional harm from the
injunction during the appeal. According to DoD, the funds at issue
“will no longer remain available for obligation after the fiscal

 36
year ends on September 30, 2019.”

First McFadden Decl. ¶ 7; see

D. Ct. Doc. 181-13, ¶ 7 (June 19, 2019) (Second McFadden Decl.);
see also DoD Appropriations Act § 8003, 132 Stat. 2998 (“No part
of any appropriation contained in this Act shall remain available
for obligation beyond the current fiscal year, unless expressly so
provided.”). DoD has further stated that the ordinary “contracting
process necessary to completely obligate the full value” of these
contracts

is

“complex,”

explaining

that

the

“contracts

are

‘undefinitized’ contract actions, which is a type of contract for
which the contract terms, specifications, or price are not agreed
upon before performance begins.”

First McFadden Decl. ¶ 8; see

Second McFadden Decl. ¶ 8; cf. 48 C.F.R. 217.7400 et seq.
also

explained

that

the

“definitiziation

process

DoD has
includes

extensive negotiation,” “audits,” and internal review, although
DoD may “unilaterally definitize” terms in some circumstances.
First McFadden Decl. ¶¶ 8-9.

The agency has stated that if it

“does not have sufficient time available prior to September 30,
2019, to definitize these contracts and thereby obligate the
balance of the contract price, the remaining unobligated funds
will become unavailable,” and DoD “will be unable to complete the
projects as planned.”

Id. ¶ 10.

Thus, if the injunction remains

in place, it may foreclose DoD’s ability to obligate the funds; if
so, it may effectively operate as a final judgment. 5
According to DoD, a recent decision by the U.S. Coast
Guard to “authorize[] the involuntary mobilization of certain
5

 37
The panel majority’s observation (App., infra, 71a-72a) that
Congress could appropriate funds in the future for these projects
is a non sequitur.

Courts could not grant that relief and thus

could not undo the harm from the injunction if the government
prevails, even if Congress could do so.

See, e.g., City of Houston

v. Department of Hous. & Urban Dev., 24 F.3d 1421, 1424, 1426-1427
(D.C.

Cir.

1994)

(recognizing

the

“well-settled

matter

constitutional law that when an appropriation has lapsed

of

* * *

federal courts cannot order the expenditure of funds that were
covered by that appropriation”).
Finally,

DoD

anticipates

that

it

“will

be

obligated

to

reimburse” its contractors for the additional expenses they are
incurring, such as the cost of storing and securing equipment,
“which would not have been incurred but for the [district court’s]
members of [its] Reserve Component” may have altered DoD’s
authority to waive the requirement that the contracts be
definitized before funds may be fully obligated -- which, in turn,
would reduce the amount of time necessary to fully obligate funds
for these projects. App., infra, 178a, ¶ 7 (Stiglich Decl.); see
id. ¶¶ 6-8; cf. 10 U.S.C. 2326(b)(4)(A).
DoD states, however,
that it has made no “authoritative determination * * * that the
statutory requirements for” a waiver have been satisfied, “and the
Secretary of the Army ha[s] made no decision to invoke this waiver
authority” if it is available. Stiglich Decl. ¶ 9. DoD has also
stated that, “[n]otwithstanding the potential availability of this
waiver authority, the government’s interest in negotiating the
best value for taxpayers and protecting the federal fisc would be
best served by adhering to the definitization requirements” in
Section 2326(b), id. ¶ 10, which will require substantial time to
complete.
Accordingly, notwithstanding the possibility of a
waiver, DoD respectfully requests a decision on this application
by July 26, 2019, to ensure that it has sufficient time to finalize
the contracts before September 30, 2019.

 38
injunction.”

First McFadden Decl. ¶ 13.

DoD estimates that those

additional costs will exceed $490,000 per day for all the projects
combined.

See id. ¶¶ 14-15; Second McFadden Decl. ¶¶ 14-15.

In

that respect, too, the injunction does not merely preserve the
status quo, but rather inflicts significant ongoing harm on the
government and the public.

The panel majority wrongly dismissed

this harm as “self-inflicted,” App., infra, 72a, because DoD
entered into the contracts in the face of litigation.

By that

logic, DoD would have been required to treat the mere filing of a
complaint as an injunction, unilaterally ceasing to enter into
contracts -- in contravention of this Court’s repeated admonition
that a “preliminary injunction is an extraordinary remedy never
awarded as of right,” Winter, 555 U.S. at 24.
b.

These

harms

plainly

outweigh

whatever

aesthetic

and

recreational injuries respondents and their members may incur if
the Acting Secretary’s transfers are allowed to take effect “during
the limited period of time the requested stay would be in place.”
App., infra, 104a (N.R. Smith, J., dissenting). Respondents allege
that the construction at the border will harm their “‘ability to
fish,’”

“hik[e],”

and

“camp[].”

Id.

at

168a-169a

(citation

omitted) (district court’s order granting preliminary injunction).
According to DHS, however, “the vast majority of the construction
activity and the project footprints themselves will occur within
a 60-foot strip of land that parallels the international border,”

 39
in areas that are already “heavily disturbed” and that “include
existing barriers and roads.”
2019)

(First

Enriquez

D. Ct. Doc. 64-9, ¶ 63 (Apr. 25,

Decl.)

(discussing

Yuma

and

El

Paso

projects); see D. Ct. Doc. 181-7, ¶¶ 10-16 (June 19, 2019) (Second
Enriquez Decl.) (discussing El Centro and Tucson projects).

DHS

reports that the projects consist of replacing existing barriers
in areas that “function primarily as

* * *

law enforcement

zone[s],” and that the projects will not make “any change to the
existing land uses in the areas.”

First Enriquez Decl. ¶¶ 63-64;

see id. ¶¶ 12, 15, 18; see also Second Enriquez Decl. ¶ 10.

And,

in any event, respondents’ interests can be largely protected if
they ultimately prevail -- for example, by the removal of any
barriers found to be unlawful.
J., dissenting).

See App., infra, 103a (N.R. Smith,

Respondents’ asserted interest in undisturbed

fishing and birdwatching in the law-enforcement zone adjacent to
the border does not justify bringing the entire contracting process
to a halt, let alone immediately while an appeal is pending.
Respondents’ alleged harms are even less substantial than the
whale-watching interests this Court found insufficient to justify
a preliminary injunction in Winter, supra.

There, the Court

reversed a preliminary injunction prohibiting the Navy from using
sonar technology in training exercises at sea, where the plaintiffs
claimed the sonar would injure them because they “observ[ed]” and
“photograph[ed]”

marine

mammals

in

the

area

and

“conduct[ed]

 40
scientific research.”

555 U.S. at 25-26.

While acknowledging the

“seriousness” of the plaintiffs’ interests, id. at 26, the Court
nonetheless vacated the injunction, explaining that “the District
Court and the Ninth Circuit significantly understated the burden
the preliminary injunction would impose on the Navy’s ability to
conduct

realistic

training

exercises,

and

the

injunction’s

consequent adverse impact on the public interest in national
defense,”

id. at 24; see id. at 33.

Here, respondents do not claim to have conducted any research
or other productive activity in the specific areas at issue. Their
sole asserted interests are recreational and aesthetic, and those
interests

are

substantially

outweighed

by

the

harm

to

the

government and the public from the injunction.
CONCLUSION
The injunction should be stayed pending appeal and, if the
Ninth Circuit affirms the injunction, pending the filing and
disposition of a petition for a writ of certiorari and any further
proceedings

in

this

Court.

The

injunction

should

also

be

administratively stayed during the pendency of this application.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JULY 2019