Case 3:19-cv-00066-DB Document 126 Filed 09/20/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EL PASO COUNTY, TEXAS; BORDER
NETWORK FOR HUMAN RIGHTS,
Plaintiffs,

Case No. EP-19-CV-66-DB

v.
DONALD J. TRUMP, in his official capacity as
President of the United States of America, et al.,
Defendants.

DEFENDANTS’ SUPPLEMENTAL BRIEF ADDRESSING BORDER BARRIER
CONSTRUCTION PURSUANT TO 10 U.S.C. § 2808

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INTRODUCTION
The Plaintiffs in this proceeding do not have standing to challenge the Secretary of Defense’s
recent decision to authorize the funding and construction of eleven border barrier projects pursuant
to 10 U.S.C. § 2808, but that decision was lawful regardless. The Court should grant Defendants’
cross-motion for summary judgment on all § 2808 claims.
Most fundamentally, the Secretary’s recent decision does not change the fact that neither El
Paso County nor the Border Network for Human Rights (BNHR) has Article III standing. None of
the projects will be built in El Paso County or its immediate vicinity, so there is no plausible
construction-based harm to Plaintiffs. Nor does the County acquire standing because $20 million of
the total $3.6 billion the Department of Defense (DoD) has made available for these projects might
come from funds associated with a construction project at Fort Bliss. Well-established authority
precludes the County from establishing standing on the theory that a diminution in federal spending
will negatively impact its general economy or tax base. And even if this purported harm could establish
a legally cognizable injury-in-fact, the County cannot establish traceability and redressability. DoD
has unreviewable discretion over how to spend lump-sum appropriations like the one that funded the
project at Fort Bliss, and the decision whether to move forward with that project is traceable to that
discretion, not to the decision to potentially use those funds for § 2808 projects. As for BNHR, it has
no interest in the deferred military construction projects and lacks standing for the reasons explained
previously. See Defs.’ Cross-Mot. for Summ. J. at 40–44 (Defs.’ Mot.) (ECF No. 95); Defs.’ Reply
ISO Cross-Mot. for Summ. J. at 14–16 (Defs.’ Reply) (ECF No. 106).
Even if Plaintiffs have standing to raise these claims, they lack a cause of action. Plaintiffs
cannot bring an implied equitable action to enforce the Appropriations Clause because this case raises
statutory claims related to § 2808, not constitutional claims. Moreover, the Court should not imply
an equitable remedy because there is no history or tradition of courts using their equitable jurisdiction
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to enforce the type of claim that Plaintiffs assert here. Plaintiffs also cannot bring a cause of action
under the Administrative Procedure Act (APA) because the decision to use § 2808 is committed to
agency discretion by law. And regardless of whether Plaintiffs’ claims are considered under the APA
or as an implied equitable action, Plaintiffs do not fall within the zone of interests protected by § 2808.
Further, to the extent Plaintiffs challenge the President’s national emergency declaration
through § 2808, those arguments fail for the same reasons their claims under the National Emergencies
Act (NEA) fail. The President’s decision to declare a national emergency is a nonjusticiable political
question and Plaintiffs cannot challenge a discretionary judgment of the President.
There is also no merit to Plaintiffs’ argument that the Secretary of Defense failed to comply
with § 2808’s statutory requirements. The eleven border barrier projects are military construction
projects because they will be carried out with respect to a military installation. Two projects will be
built on an existing military installation along the U.S.-Mexico border. As for the other project areas,
DoD has the authority to acquire jurisdiction over both federal and non-federal land and thereby
convert that property into a military installation. The Secretary also determined that the border barrier
projects are necessary to support the use of the armed forces. Relying on the analysis of the Chairman
of the Joint Chiefs of Staff, the Secretary concluded the projects will reduce demand for DoD
personnel and assets at the locations where the barriers are constructed and allow the redeployment
of DoD personnel and assets to other high-traffic areas on the border without barriers. This
quintessential military judgment is well supported by the administrative record and entitled to
substantial deference from this Court.
Finally, Plaintiffs are not entitled to the extraordinary remedy of a permanent injunction
stopping all § 2808 border barrier projects nationwide. Plaintiffs cannot meet the high bar necessary
for a permanent injunction and, even if they could, Article III forbids entering relief that is greater
than necessary to redress Plaintiffs’ harm. Even if the Court fully agrees with the County on standing,
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the merits, and the balance of equities, the most it should do is thus enjoin DoD from spending money
in the amount expected for construction at Fort Bliss. Such an injunction would fully abate whatever
harm the diversion of funds might cause and would accordingly provide the County complete relief.
There is no basis, however, for a sweeping injunction prohibiting the use of all other funds, or § 2808
construction in general.
BACKGROUND
On September 3, 2019, the Secretary of Defense authorized 11 border barrier projects
pursuant to § 2808 that the Secretary determined are military construction projects necessary to
support the use of the armed forces in connection with the President’s declaration of a national
emergency. See Administrative Record for Border Barrier Projects Undertaken Pursuant to § 2808 at
1–33 (ECF No. 123) (“AR”). Based on analysis from the Chairman of the Joint Chiefs of Staff, among
others, the Secretary concluded the projects will deter illegal entry, increase the vanishing time of those
illegally crossing the border (i.e., the time that passes before a subject who illegally crosses the border
can no longer be identified), and channel migrants to ports of entry. Id. Further, the projects will
reduce demand for DoD personnel and assets at the locations where the barriers are constructed and
allow redeployment of DoD personnel and assets to other high-traffic areas on the border without
barriers. See id. Consequently, the barriers serve as force multipliers and allow DoD to provide
support to the Department of Homeland Security (DHS) more efficiently and effectively. See id.
To fund these projects, the Secretary authorized the Department of the Army to expend up
to $3.6 billion in unobligated military construction funds. See id. at 82. The Secretary directed that,
initially, only funds associated with projects located outside the United States will be provided to the
Department of the Army. See id. Deferred military construction projects outside the United States
account for $1.8 billion of the required funds. See id. The remaining $1.8 billion associated with
deferred projects located in the United States (including U.S. territories) will be made available to the
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Secretary of the Army when needed for obligation. See id. One of the deferred domestic projects is a
defense access roads project at Fort Bliss estimated to cost $20 million. See id. at 89.
The § 2808 projects fall into three categories based on the current status of the land where the
barriers will be built. See Declaration of Brigadier General Glenn Goddard ¶ 10 (ECF. No. 112-3).
First, two projects (Yuma 2 and Yuma 10/27) are located on the western portion of the Barry M.
Goldwater Range, an existing military installation in Arizona. See id. ¶ 10.a. The Goldwater Range is
used for live fire and weapons exercises by United States military pilots. See National Defense
Authorization Act for Fiscal Year 2000, Pub. L. 106-65, Title XXX, § 3031, 113 Stat. 512.
Second, seven projects are located, at least in part, on Federal land not subject to the Federal
Property and Administrative Services Act (Property Act), 40 U.S.C. § 471 et. seq., and can be transferred
under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701 et seq. See Goddard
Decl. ¶ 10.b; see also 43 U.S.C. § 1702(j). These projects are: Yuma 3; Yuma 6; San Diego 4; San Diego
11; El Paso 2; El Paso 8; and El Centro 9. Goddard Decl. ¶ 10.b.
In these seven project areas, the Department of the Army intends to obtain administrative
jurisdiction of the requisite land and add the land to the Army’s real property inventory, either as a
new installation or as part of an existing military installation. See AR at 3, 9–10, 30–31, 40. To that
end, the Secretary of Defense directed the Acting Secretary of the Army, as authorized by § 2808, to
undertake the acquisition of lands and transfer of administrative jurisdiction. See id. at 9–10, 30–31.
DoD also requested, to the extent necessary, assistance from other federal agencies. The Secretary of
Defense directed the Acting Secretary of the Army to request that the Department of the Interior
withdraw Federal lands subject to the FLPMA required for the projects and transfer administrative
jurisdiction to the Secretary of the Army. See id. On September 18, 2019, the Secretary of the Interior
announced transfers of the lands to the Department of the Army for five of the seven projects in this
category. See Exhibit 1. For Federal land governed by the Property Act, the Secretary of Defense
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directed the Acting Secretary of the Army to request that the relevant Federal land holding agency,
through the General Services Administration (GSA), expeditiously and without charge transfer
administrative jurisdiction over lands in the project areas to the Army. See AR at 9–10, 30–31. Two
of the seven projects, Yuma 3 and San Diego 4, are exclusively on Federal land subject to transfer
under FLPMA. Goddard Decl. ¶ 10.b. The other five projects involve combinations of Federal land
subject to transfer under FLPMA; Federal land that can be transferred between Federal agencies under
the Property Act; and non-Federal land. Id. With respect to any non-Federal land, the United States
intends to acquire that land through negotiated purchases or condemnation. See id. ¶¶ 9, 10.c.
Third, the remaining two projects (El Centro 5 and Laredo 7) are located entirely on Federal
land subject to the Property Act and non-Federal land. See id. ¶ 10.c. Thus, the United States would
acquire the land through transfers between agencies or negotiated purchases or condemnation.
ARGUMENT
I.

Plaintiffs Do Not Have Article III Standing to Challenge § 2808 Construction.
No § 2808 project has been authorized within El Paso County. Indeed, the closest project to

the County begins about 100 miles away from downtown El Paso, “approximately 20 miles west of
the Columbus[, New Mexico point of entry].” See AR at 11. As Defendants explained with respect
to § 284 construction, see Defs.’ Mot. at 35–40; Defs.’ Reply at 12–17, Plaintiffs cannot establish an
“injury in fact” arising from § 2808 construction “based on their fears of hypothetical future harm
that is not certainly impending,” or from voluntary expenditures of resources by County officials in
response to such fears. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415–18 (2013).
The only significant change in the County’s standing argument is its contention that it will
suffer “direct pecuniary injury” as a result of DoD deferring a military construction project at Fort
Bliss. Pls.’ Supp. Br. 2–5 (ECF No. 116-1). That is incorrect. Standing for a “direct pecuniary injury”
arises only when the plaintiff itself suffers a loss. The County does not claim that it would receive the
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$20 million associated with the project at Fort Bliss, and is therefore entirely different from the
plaintiffs in the cases it invokes. 1 Construction at Fort Bliss may “benefit[] the County’s economy,”
but only in a highly general, indirect way. Pls.’ Supp. Br. 3; see also Samaniego Decl. ¶¶ 15–16. “[T]his
type of economic loss ‘is the sort of generalized grievance about the conduct of government, so
distantly related to the wrong for which relief is sought, as not to be cognizable for purposes of
standing.’” Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985) (quoting Pennsylvania v. Kleppe,
533 F.2d 668, 672 (D.C. Cir. 1976)). As the Supreme Court explained in Wyoming v. Oklahoma, state
and local governments may have standing to challenge “a direct injury in the form of a loss of specific
tax revenues,” but not where, as here, “actions taken by United States Government agencies [have
injured their] econom[ies] and thereby caused a decline in general tax revenues.” 502 U.S. 437, 448
(1992) (discussing Kleppe and Miller). Much like the standing theories the County pressed in earlier
briefs, their argument is really a parens patriae claim on behalf of residents potentially impacted by the
deferral of funding from Fort Bliss. Such claims are not permitted against the federal government.
See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 610 n.16 (1982). The County’s
argument thus fails at the injury-in-fact threshold.
Nor can the County establish traceability and redressability. An appropriation merely provides
legal authority for federal agencies to incur obligations and make payments from the Treasury for
specified purposes. See U.S. Gov’t Accountability Off., A Glossary of Terms Used in the Federal

Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 982–83 (2017) (bankruptcy court’s dismissal of chapter
11 case ensured petitioners received nothing on their claims against estate); Ecosystem Investment Partners
v. Crosby Dredging, LLC, 729 F. App’x 287, 289, 292 (5th Cir. 2018) (agency’s failure to consider whether
mitigation “credits were a reasonable alternative” led to loss of plaintiff’s opportunity to sell such
credits); Texas v. United States, 809 F.3d 134, 155 (5th Cir. 2015) (likely increases in legally required state
expenditures due to increase in pool of individuals eligible for drivers’ licenses); K.P. v. LeBlanc, 627
F.3d 115, 122 (5th Cir. 2010) (state insurance program “refused [plaintiffs] benefits otherwise
associated with their paid membership”); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir.
2006) (plaintiff “‘would need to raise and expend additional funds and resources to prepare a new and
different campaign . . . .’”).
1

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Budget Process 13–14 (Sept. 2005). The project at Fort Bliss was funded out of a general lump sum
appropriation for defense access roads that DoD decided at that time to use for Fort Bliss. See
Consolidated Appropriations Act, Pub. L. No. 115-141, div. J, § 131, 132 Stat. 805; Exhibit 2. Because
lump-sum spending is typically committed to agency discretion by law, an order enjoining the § 2808
projects would not ensure construction at Fort Bliss takes place. See Lincoln v. Vigil, 508 U.S. 182,
192–95 (1993). At most, the Court could enjoin DoD from expending $20 million on border barrier
projects, but that would not remedy the County’s purported injury because the Court cannot require
DoD to spend that discretionary lump-sum appropriation in the County. The County may achieve
“psychic satisfaction” from halting § 2808 construction, Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 107 (1998), but since it would not necessarily result in the Fort Bliss project moving forward,
the County lacks standing.
BNHR does not have standing to challenge the Secretary’s § 2808 decision, either, for the
reasons Defendants have already explained in connection with previously announced § 284
construction in New Mexico. Defs.’ Mot. at 40–44; Defs.’ Reply at 16–17. Those arguments apply
with equal force to the recently announced § 2808 projects. Summary judgment is thus appropriate.
II.

Plaintiffs Lack a Cause of Action to Challenge the § 2808 Projects.
Even if Plaintiffs had standing, though, they have no cause of action for their § 2808 claims.

Plaintiffs contend they have “two separate and independent” causes of action to challenge the § 2808
projects: (1) an equitable cause of action for “actions that violate the Appropriations Clause”; and (2)
a cause of action under the APA. See Pls. Supp. Br. at 7. Both of these arguments fail.
First, this is not “a proper case” for the “judge-made remedy” of an implied cause of action
to enjoin alleged violations of the Appropriations Clause by agency officials. See Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). The Supreme Court has recognized that “[t]he
ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts
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of equity,” and is available only in “some circumstances,” id., where such relief “was traditionally
accorded by courts of equity,” Grupo Mexicano De Desarrollo SA v. All. Bond Fund, Inc., 527 U.S. 308,
319 (1999). Here, Plaintiffs identify no history or tradition where courts of equity have entertained
lawsuits to enforce purported violations of the Appropriations Clause that allegedly cause indirect
harm to a local economy. See id. at 319–20. Moreover, this case does not raise any constitutional
issues because Plaintiffs cannot recast their statutory claim that Defendants violated the terms of
§ 2808 as a “constitutional” claim. See Dalton v. Spector, 511 U.S. 462, 473 (1994); Defs.’ Mot. at 58–
60; Defs.’ Reply at 17–19. The absence of a cause of action was among the reasons the Supreme
Court stayed an injunction in a related border wall case raising similar issues wherein the plaintiffs
similarly attempted to recast their statutory claims as “constitutional” ones under the Appropriations
Clause. See Trump v. Sierra Club, --- S. Ct. ----, 2019 WL 3369425 (U.S. July 26, 2019) (“Among the
reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no
cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.”).
Second, Plaintiffs cannot satisfy the APA’s threshold requirements for review of agency action.
In light of the decision to authorize border barrier projects pursuant to § 2808, Defendants withdraw
their argument that Plaintiffs cannot satisfy the APA’s final agency action requirement, see Defs. Mot.
at 44–45; Defs.’ Reply at 19, but Defendants’ other APA cause of action arguments are unaffected by
the Secretary’s decision and remain dispositive. The Secretary of Defense’s decision to authorize the
projects under § 2808 is not reviewable because it is committed to agency discretion by law. See Defs.
Mot. at 45–47; Defs.’ Reply at 19–20. And, as noted above, the same is true for challenges to the use
of lump-sum appropriations. See Lincoln, 508 U.S. 192–95. Further, Plaintiffs do not fall within the
zone of interests protected by § 2808. See Defs. Mot. at 47–49; Defs.’ Reply at 20–21.
Plaintiffs contend that the zone-of-interest requirement either does not apply or has been
satisfied here, but those arguments lack merit. See Pls.’ Supp. Br. at 8–10. Whether Plaintiffs’ cause
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of action is considered under the APA or as an implied equitable action, the zone-of-interests
requirement unquestionably applies. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 129 (2014); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 475 (1982); Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320–21 n.3 (1977).
Plaintiffs’ claims fall outside of the zone of interests protected by § 2808. See Defs.’ Mot. at
47–49; Defs.’ Reply at 20–21. They present no arguments that BNHR falls within § 2808’s zone of
interests. See Pls. Supp. Br. 8–10. And the County cannot show it was “an intended beneficiary of
military construction funds” or “entitled to the funds as originally appropriated.” See id. at 9; Sierra
Club v. Trump, 929 F.3d 670, 715 (9th Cir. 2019) (N.R. Smith, J., dissenting). In authorizing DoD to
engage in military construction “without regard to any other provision of law” during a national
emergency, 28 U.S.C. § 2808(a), Congress did not intend to protect local governments from
speculative downstream economic consequences arising from deferred military construction.
Moreover, allowing the County’s suit to proceed here would lead to “absurd consequences” by
enabling local governments to delay the expenditure of funds for emergency military construction
projects by filing lawsuits raising generalized economic grievances. Thompson v. N. Am. Stainless, LP,
562 U.S. 170, 176 (2011). In enacting § 2808, Congress could not have intended that result.
Nor can Plaintiffs escape this conclusion by asserting that they fall within the zone of interests
of the Appropriations Clause. Dalton forecloses that constitutional claim and, in any event, § 2808
would still prescribe the relevant zone of interests that plaintiffs 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, 175–76 (1997). The Appropriations Clause provides that
appropriations must be “made by Law,” U.S. Const., art. I, § 9, cl. 7, and § 2808 is the “law” that
Defendants are invoking. This case thus turns solely on § 2808, making it the “particular provision of
law upon which the plaintiff relies.” Bennett, 520 U.S. at 175–76. Plaintiffs are wrong that Defendants
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have invoked § 2808 as a “defense” to Plaintiffs’ Appropriations Clause “claim,” Pls. Supp. Br. at 9;
rather, Plaintiffs’ claim (whether “constitutional” or “statutory”) is that Defendants exceeded the
scope of their authority under § 2808. They must therefore show that they fall within that provision’s
zone of interests and for the reasons discussed above, they cannot make that showing.
III.

The President’s Determination of a National Emergency that Requires the Use of
the Armed Forces Is Nonjusticiable.
Section 2808’s military construction authority is made available to DoD upon “the declaration

by the President of a national emergency in accordance with the [NEA] that requires use of the armed
forces[.]” 10 U.S.C. § 2808(a). The President’s Proclamation and subsequent veto message complied
with the requirements of the NEA, see 50 U.S.C. §§ 1621(a), 1631, explained why a national emergency
exists at the southern border that requires the use of the armed forces, and specifically made § 2808
available to the Secretary of Defense. See Proclamation, 84 Fed. Reg. 4949 (Feb. 15, 2019); Veto
Message, 2019 WL 1219481 (Mar. 15, 2019).
Plaintiffs’ challenge to the President’s national emergency declaration through § 2808 fails for
the same reasons as their NEA claims. The President’s decision to declare a national emergency is a
nonjusticiable political question; Plaintiffs cannot challenge a statutorily authorized discretionary
judgment of the President; and the Court should not impose either declaratory or injunctive relief
against the President for his official conduct. See Defs. Mot. at 23–30; Defs.’ Reply at 4–10. Further,
to the extent Plaintiffs rely on the APA to challenge the President’s national emergency declaration,
that claim fails because the APA “does not expressly allow review of the President’s action.” See
Franklin v. Massachusetts, 505 U.S. 788, 801 (1992); Dalton, 511 U.S. at 476.
Section 2808 imposes an additional requirement beyond the NEA—that the national
emergency “requires use of the armed forces”—but that does not change the conclusion that the
President’s determination here is nonjusticiable. There are no judicially manageable standards to
evaluate the President’s decision to deploy the armed forces to address a national emergency.
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“[C]ourts lack the competence to assess the strategic decision to deploy” the armed forces “or to
create standards to determine” whether use of the armed forces “was justified or well-founded.” ElShifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 844 (D.C. Cir. 2010) (en banc). “To attempt to
decide such a matter without the necessary expertise and in the absence of judicially manageable
standards would be to entangle the court in matters constitutionally given to the executive branch.”
Industria Panificadora, S.A. v. United States, 763 F. Supp. 1154, 1160 (D.D.C. 1991) (quoting In re Korean
Air Lines Disaster of Sept. 1, 1983, 597 F. Supp. 613, 616 (D.D.C. 1984)), aff’d on other grounds, 957 F.2d
886 (D.C. Cir. 1992). As the Supreme Court has explained, “it is difficult to conceive of an area of
governmental activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10,
93 (1973) (holding that a case seeking to impose restrictions on the domestic deployment of National
Guard forces raised nonjusticiable political questions). Moreover, the Commander-in-Chief Clause
of the Constitution textually commits control of the armed forces to the President. See U.S. Const.,
art. II, § 2, cl. 1; see Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). Accordingly, “it is the President
who, as head of the Executive Branch and Commander in Chief . . . decides whether and when to
deploy military forces, not this Court.” Mobarez v. Kerry, 187 F. Supp. 3d 85, 93 (D.D.C. 2016).
IV.

The Border Barriers Are Military Construction Projects.
Even if the Court had the authority to review the Secretary of Defense’s § 2808 decision, the

requirements of § 2808 have been satisfied. Section 2808(a) authorizes the Secretary to “undertake
military construction projects.”

The term “military construction” in § 2808 “includes any

construction, development, conversion, or extension of any kind carried out with respect to a military
installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or
construction of a defense access road . . . .” 10 U.S.C. § 2801(a). The planned border barriers
constitute “construction” being undertaken by DoD and thus fall within that definition so long as
they are undertaken “with respect to a military installation.”
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The locations of the planned border-barrier projects fall within the broad definition of
“military installation,” which includes “a base, camp, post, station, yard, center, or other activity under
the jurisdiction of the Secretary of a military department[.]” Id. § 2801(c)(4). Two of the projects are
on the Goldwater Range, an existing military installation in Arizona. With respect to the remaining
project areas, DoD has the authority to obtain administrative jurisdiction of the requisite land and
either convert that land into a new military installation or add it to an existing military installation in
accordance with DoD’s regulations governing property acquisition. See DoD Instruction 4165.14,
Real Property Inventory and Forecasting; DoD Instruction 4165.71, Real Property Acquisition. And the
Secretary of Defense has directed the Acting Secretary of the Army to apply for and accept
administrative jurisdiction of real property from other Federal agencies and acquire the non-Federal
real property necessary to undertake the § 2808 projects. See AR at 3, 9–10, 30–31; see also Ex. 2
(announcement of land transfer to DoD). There is thus no merit to Plaintiffs’ argument that the
projects are not “military construction.” All of the planned construction will be undertaken “with
respect to a military installation,” whether on “a base, camp, post, station, yard, center” or as part of
another “activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. § 2801(a).
Nor is there any question that DoD has the authority to acquire land necessary for § 2808
projects, given that § 2808 authorizes “military construction,” a defined term that includes “any
acquisition of land.” 10 U.S.C. § 2801(a). Section 2808 further authorizes the Secretary of Defense
to undertake military construction projects (which includes land acquisitions) “without regard to any
other provision of law.” This broad language—a variant of a non obstante or “notwithstanding”
clause—sweeps aside all statutory and regulatory provisions that might otherwise constrain the
authority provided by § 2808. See Am. Fed’n of Gov’t Emps., Local 3295 v. Fed. Labor Relations Auth., 46
F.3d 73, 76 (D.C. Cir. 1995). The clause thus provides “a sweeping dispensation from all legal
constraints,” and “indicate[s] that Congress intended agencies to enjoy ‘unfettered discretion.’” Id. at
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76; see United States v. Elashi, 789 F.3d 547, 552 (5th Cir. 2015). Accordingly, land acquisition authorized
by § 2808 need not comply with any otherwise-applicable statutory restrictions.
In addition, for land currently controlled by other federal agencies, Congress has authorized
land transfers between federal agencies, although such transfers are not subject to statutory constraints
because of § 2808’s non obstante clause. The Federal Land Policy and Management Act of 1976, 43
U.S.C. §§ 1701 et seq., authorizes the Secretary of the Interior to make “withdrawals” of land, id. §
1714(a), including the “transfer[ of] jurisdiction over an area of Federal land . . . from one department,
bureau or agency to another department, bureau or agency,” id. § 1702(j). Further, the Property Act,
40 U.S.C. §§ 101 et seq., authorizes GSA to transfer excess real property between agencies. See id. §
521; Valley Forge Christian Coll., 454 U.S. at 466. Finally, for any non-federal land, the federal
government’s power of eminent domain has long been used to acquire property for military
installations. See, e.g., Cameron Dev. Co. v. United States, 145 F.2d 209, 209 (5th Cir. 1944). Eminent
domain “appertains to every independent government. It requires no constitutional recognition; it is
an attribute of sovereignty.” Boom Co. v. Patterson, 98 U.S. 403, 406 (1879).
V.

The Border Barrier Projects are Necessary to Support the Use of the Armed Forces.
Section 2808 also requires that the military construction projects must be “necessary to

support such use of the armed forces.” 10 U.S.C. § 2808(a). Here, the administrative record amply
supports the Secretary of Defense’s determination that the eleven border barrier projects are
“necessary to support the use of the armed forces.” See AR at 1–11; 42–75; 97–137.
The Secretary’s determination that these projects are necessary to support the use of the armed
forces in connection with the national emergency at the southern border is entitled to substantial
deference from this Court. See Bynum v. FMC Corp., 770 F.2d 556, 562 (5th Cir. 1985) (emphasizing
the importance of “judicial restraint in military matters” because “interference by civilian courts with
military authority inevitably raises both questions about judicial competency in this area and separation
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of powers concerns”). The Supreme Court has traditionally been reluctant to intervene in the conduct
of military affairs. See, e.g., North Dakota v. United States, 495 U.S. 423, 443 (1990); Dep’t of Navy v. Egan,
484 U.S. 518, 530 (1988); Chappell v. Wallace, 462 U.S. 296, 300 (1983); Gilligan, 413 U.S. at 10; Orloff v.
Willoughby, 345 U.S. 83, 93–94 (1953). This reluctance rests on both separation of powers concerns
as well as the principle that judges “are not given the task of running the Army,” Orloff, 345 U.S. at 93,
and are “ill-equipped” to determine the impact of judicial intrusion on military decisionmaking,
Chappell, 462 U.S. at 305. Indeed, the Supreme Court instructs courts not to second-guess “[t]he
complex, subtle, and professional decisions as to the composition, training, equipping, and control of
a military force.” Gilligan, 413 U.S. at 10; see Farmer v. Mabus, 940 F.2d 921, 924 (5th Cir. 1991).
Here, based on a comprehensive and detailed analysis from the Chairman of the Joint Chiefs
of Staff, among others, the Secretary of Defense concluded that the border barrier projects will deter
illegal entry, increase the vanishing time of those illegally crossing the border, and channel migrants to
ports of entry. See AR at 1–11; 42–75; 97–137. Consequently, the projects will reduce the demand
for DoD personnel and assets at the locations where the barriers are constructed and allow the
redeployment of DoD personnel and assets to other high-traffic areas on the border without barriers.
See id. For example, barriers will reduce the areas where migrants can cross easily, thereby impeding
entries onto the live-fire Goldwater Range as well as reduce the need for DoD personnel to operate
mobile surveillance camera sites in other areas along the border and enabling more efficient use of
DoD personnel. See, e.g., id. at 42–46; 59–75. The barriers serve as force multipliers and allow DoD
to support DHS more effectively. See AR at 9. Given the extensive record supporting the ways
barriers will support the armed forces deployed to the southern border, the Court should defer to the
“professional military judgment” of the Department of Defense. See Gilligan, 413 U.S. at 10.
VI.

An Injunction of § 2808 Construction Would Be Inappropriate
Even if the Court agrees with Plaintiffs on the merits of their § 2808 arguments, a permanent
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injunction should not issue. Injunctions “do[] not follow from success on the merits as a matter of
course.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). In Winter, the Supreme Court
found injunctive relief improper because the plaintiffs’ “ecological, scientific, and recreational
interests” in whale watching were “plainly outweighed” by the Navy’s interest in conducting realistic
training exercises. Id. at 24–26. Winter directs the proper outcome here, as well. Even if Plaintiffs’
injury-in-fact assertions establish standing, they are not “an adequate basis for equitable relief,”
particularly when weighed against Defendants’ interests in supporting the use of the armed forces at
the border. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983).
Finally, at the absolute most, the Court should enjoin only the use of funds associated with
the Fort Bliss project. It is a basic principle of Article III that “a plaintiff’s remedy must be limited to
the inadequacy that produced his injury in fact.” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018)
(quotation omitted). As such, an injunction “should be no more burdensome to the defendant than
necessary to provide complete relief.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). If the Court
deems an injunction necessary, Plaintiffs can only obtain an injunction prohibiting DoD from using
the $20 million associated with the project at Fort Bliss—relief that would fully remedy the County’s
asserted harm. Sparing the County whatever harm it might suffer from use of military construction
appropriations for a different project does not require—and thus provides no legal basis for—a
sweeping nationwide injunction prohibiting border barrier construction across the southern border.
CONCLUSION
For these reasons, the Court should dismiss Plaintiffs’ complaint in full or grant summary
judgment to the Government. Should the Court grant summary judgment to the Plaintiffs, though,
it should limit any injunction to funds associated with the project at Fort Bliss.

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Dated: September 20, 2019

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEX HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN (IN Bar 23840-49)
Senior Trial Counsel, Federal Programs Branch
/s/ Michael J. Gerardi
MICHAEL J. GERARDI (D.C. Bar No.
1017949)
KATHRYN C. DAVIS
LESLIE COOPER VIGEN
RACHAEL L. WESTMORELAND
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L St., NW, Rm. 12212
Tel: (202) 616-0680
Fax: (202) 616-8460
E-mail: michael.j.gerardi@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the clerk using the CM/ECF system, which will
send notification of such filing to all counsel of record in this matter.
/s/ Michael J. Gerardi
Michael J. Gerardi

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