Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 1 of 20

EXHIBIT A

Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 2 of 20

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS
500 E. San Antonio
El Paso, TX 79901 and
BORDER NETWORK FOR HUMAN RIGHTS
2115 N. Piedras St
El Paso, TX 79930,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States of America
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500,
MARK T. ESPER, in his official capacity as Acting
Secretary of Defense
1000 Defense Pentagon
Washington, D.C. 20301,
KEVIN McALEENAN, in his official capacity as
Acting Secretary of Homeland Security
245 Murray Lane, SW, Mail Stop 0485
Washington, DC 20528-0485,
TODD T. SEMONITE, in his official capacity as
Commanding General
United States Army Corps of Engineers
441 G Street, NW
Washington, DC 20314-1000,
DAVID BERNHARDT, in his official capacity as
Acting Secretary of the Interior
1849 C Street, NW
Washington, DC 20240,
Defendants.

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Civil Action No. 3:19-cv-66-DB
SUPPLEMENTAL BRIEF IN
LIGHT OF NOTICE OF
DECISION BY THE
DEPARTMENT OF DEFENSE
TO AUTHORIZE BORDER
BARRIER PROJECTS
PURSUANT TO 10 U.S.C.
§ 2808

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TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
ARGUMENT ................................................................................................................................. 2
I.

II.

III.

DOD’S RECENT ACTIONS CONFIRM PLAINTIFFS’ ARTICLE III
STANDING TO CHALLENGE THE PROCLAMATION AND DOD’S
§ 2808 SPENDING ................................................................................................ 2
A.

El Paso County Has Standing .................................................................... 2

B.

BNHR Has Standing .................................................................................. 5

DEFENDANTS’ RECENT ACTIONS CONFIRM THAT PLAINTIFFS
HAVE AN APA CAUSE OF ACTION ................................................................ 6
A.

DOD’s Recent Announcements Confirm That It Has Taken “Final
Agency Action” Under § 2808 .................................................................. 8

B.

If the Zone of Interests Test Applies, Plaintiffs Satisfy It ......................... 8

PLAINTIFFS RESPECTFULLY REQUEST THAT THE COURT
RESOLVE THEIR CLAIMS AS EXPEDITIOUSLY AS POSSIBLE ............... 10

CONCLUSION ............................................................................................................................ 12

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TABLE OF AUTHORITIES
Page(s)
Cases
Armstrong v. Exceptional Child Ctr.,
135 S. Ct. 1378 (2015) ................................................................................................................ 7
Ass’n of Cmty. Orgs. For Reform Now v. Fowler,
178 F.3d 350 (5th Cir. 1999) ...................................................................................................... 6
Bennett v. Spear,
520 U.S. 154 (1997) ................................................................................................................ 5, 9
Chamber of Commerce v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................... 7
Czyzewski v. Jevic Holding Corp.,
137 S. Ct. 973 (2017) .................................................................................................................. 3
Duarte ex rel. Duarte v. City of Lewisville,
759 F.3d 514 (5th Cir. 2014) ...................................................................................................... 2
Ecosystem Investment Partners v. Crosby Dredging, L.L.C.,
729 F. App’x 287 (5th Cir. 2018) ............................................................................................... 3
K.P. LeBlanc,
627 F.3d 115 (5th Cir. 2010) .................................................................................................. 2, 4
Lexmark Int’l Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .................................................................................................................... 8
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) .............................................................................................................. 8, 10
Rumsfeld v. Forum for Acad. & Inst. Rights, Inc.,
547 U.S. 47 (2006) ...................................................................................................................... 5
Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019) .................................................................................................... 10
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ................................................................................................................ 2, 5
Texas Democratic Party v. Benkiser,
459 F.3d 582 (5th Cir. 2006) .................................................................................................. 2, 4
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ...................................................................................................... 5

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TABLE OF AUTHORITIES
(Continued)

Page(s)

Trump v. Hawaii,
138 S. Ct. 2392 (2018) ................................................................................................................ 9
U.S. Army Corps of Eng’rs v. Hawkes Co.,
136 S. Ct. 1807 (2016) ................................................................................................................ 8
United States v. MacCallom,
426 U.S. 317 (1976) .................................................................................................................... 7
Statutes
10 U.S.C. § 2808 ......................................................................................................................... 3, 4
10 U.S.C. § 2808(a) .................................................................................................................... 5, 9
10 U.S.C. § 284(a) ........................................................................................................................ 10
5 U.S.C. § 702 ................................................................................................................................. 7
5 U.S.C. § 706(2) ............................................................................................................................ 7
5 U.S.C. § 706(2)(B) ....................................................................................................................... 9
Other Authorities
Nick Miroff & Josh Dawsey, ‘Take the land’: President Trump wants a border wall. He
wants it black. And he wants it by Election Day.,
Washington Post (Aug. 27. 2019), available at
https://www.washingtonpost.com/immigration/take-the-land-president-trump-wants-aborder-wall-he-wants-it-black-and-he-wants-it-by-election-day/2019/08/27/37b80018c821-11e9-a4f3-c081a126de70_story.html .............................................................................. 11
U.S. Const. art. I, § 9, cl. 7.............................................................................................................. 9

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INTRODUCTION
On September 3, 2019, Defendants gave the Court notice that the Department of Defense
(DOD) has made a final determination to build eleven border wall projects using $3.6 billion in
military construction funds under 10 U.S.C. § 2808. And on September 5, 2019, Defendants
gave notice identifying the military construction projects that Congress had already appropriated
money for that will now lose funding in order to build those eleven wall projects. Most relevant
here, DOD will divert $20 million away from a planned military construction project at Fort
Bliss in El Paso County, and one of the new wall projects will take place in southern New
Mexico, in El Paso County’s close vicinity.
DOD’s recent actions erase any possible doubt about Plaintiffs’ Article III standing and
right to sue under the Administrative Procedure Act (APA). First, the diversion of funds away
from Fort Bliss, the lifeblood of El Paso’s economy, confirms the County’s direct economic
injury. Similarly, planned § 2808 wall projects in southern New Mexico will force the Border
Network for Human Rights (BNHR) to devote further resources toward counteracting
Defendants’ unlawful actions. Second, DOD’s determination substantiates the existence of
“final agency action” under the APA, and the diversion of funds away from Fort Bliss ensures
that the County falls squarely within the Appropriation Clause’s and § 2808’s “zone of
interests,” to the extent that test applies. In sum, DOD’s recent repurposing of funds that
Congress intended for other ends definitively confirms both Plaintiffs’ ability to assert their
respective claims.
In all events, DOD’s actions reaffirm the urgency of this case, and the speed with which
Defendants seek to construct a wall. After these actions, there are no plausible obstacles to
reaching the merits of Plaintiffs’ claims and resolving them in Plaintiffs’ favor.

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ARGUMENT
I.

DOD’S RECENT ACTIONS CONFIRM PLAINTIFFS’ ARTICLE III STANDING
TO CHALLENGE THE PROCLAMATION AND DOD’S § 2808 SPENDING
To establish Article III standing, a plaintiff must demonstrate an injury in fact that is

fairly traceable to the defendant’s challenged action, and a likelihood that the injury will be
redressed by a favorable decision. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58
(2014). As explained in Plaintiffs’ opening and reply briefs, Plaintiffs have standing to challenge
the Proclamation, as well as Defendants’ expenditure of funds on a border wall pursuant to 10
U.S.C. §§ 2808 and 284. See Pls. Opening Br. 9-19; Pls. Reply Br. 2-15. On September 3 and 5,
2019, Defendants announced the specific border wall projects they will use § 2808 funds to
build, see ECF No. 112, and the already-planned military construction projects that will now be
sacrificed in favor of the border wall, see ECF No. 114; ECF No. 114-1. Defendants’ recent
actions confirm Plaintiffs’ standing to challenge the President’s Proclamation and DOD’s use of
§ 2808 to build a border wall.
A.

El Paso County Has Standing

“[I]f a plaintiff is an object of a government regulation, then that plaintiff ordinarily has
standing to challenge that regulation.” Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514,
518 (5th Cir. 2014). And when a plaintiff suffers “a direct pecuniary injury” that, too, is
generally “sufficient to establish injury-in-fact.”

K.P. LeBlanc, 627 F.3d 115, 122 (5th Cir.

2010); see Texas Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006) (“economic
injury is a quintessential injury upon which to base standing”). That is equally true where the
economic injury stems from the “loss of a non-illusory opportunity” to obtain “a benefit.”
Ecosystem Investment Partners v. Crosby Dredging, L.L.C., 729 F. App’x 287, 292 (5th Cir.
2018); see Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (standing where

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challenged action deprived party of “a chance to obtain a settlement that respected [its] priority”
in bankruptcy).
Congress has appropriated funds for DOD to spend on military construction projects. See
Pls. Opening Br. 35. Before the President’s Proclamation, DOD had planned to use at least $20
million of those funds to build “Defense Access Roads” at Fort Bliss, a military base in El Paso
County. See ECF No. 114-1; ECF No. 55-21. According to a top County official’s sworn
declaration, Fort Bliss is the “lifeblood of the El Paso economy.” ECF No. 55-26, ¶ 15; id. ¶ 14
(Fort Bliss “drives our economy”).

Indeed, a study by the University of Texas-El Paso’s

Institute for Policy and Economic Development shows that Fort Bliss has a “$5.9 billion
economic impact on El Paso County,” and “create[s] nearly 62,000 jobs with more than $4
billion in compensation to area households.” Id. ¶ 15. “[T]he financial health of Fort Bliss,”
therefore, “affects the real estate market and every other aspect of the economy in El Paso.” Id.
So the planned $20 million construction project would have benefited Fort Bliss, and in turn
benefited the County’s economy.
Section 2808 states that “[i]n the event of . . . the declaration by the President of a
national emergency in accordance with the National Emergencies Act [NEA] that requires use of
the armed forces, the Secretary of Defense . . . may undertake military construction projects . . .
not otherwise authorized by law that are necessary to support such use of the armed forces.” 10
U.S.C. § 2808. “Such projects,” it continues, “may be undertaken only within the total amount
of funds that have been appropriated for military construction.” Id. When President Trump
invoked the NEA to declare “the current situation at the southern border” a “national
emergency,” he simultaneously “invoked and made available” funds under § 2808, so that DOD
could spend $3.6 billion in military construction funds on a border wall. ECF No. 55-14; see

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ECF No. 95-5. Because that $3.6 billion had to come from “the total amount of funds that have
been appropriated for military construction,” 10 U.S.C. § 2808, certain already-planned
construction projects would have to be foregone to build the wall. Accordingly, on March 18,
2019, DOD sent Congress a “Fact Sheet” identifying already-planned military construction
projects from which funding could be diverted for the wall, including projects at Fort Bliss. ECF
No. 55-21. In Plaintiffs’ opening and reply briefs, they showed that the threatened loss of
funding from Fort Bliss established Article III injury. See Pls. Opening Br. 14; Pls. Reply Br. 6.
On September 5, 2019, Defendants gave notice that DOD had made the final
determination to divert $20 million away from planned construction on “Defense Access Roads”
at Fort Bliss, to be used on building a wall under § 2808. See ECF No. 114; ECF No. 114-1.
That diversion of funds substantiates the County’s “direct pecuniary injury” that suffices for
Article III standing. LeBlanc, 627 F.3d at 122. After all, it strips funds from the “lifeblood of
the El Paso economy,” and it eliminates the many jobs that new construction at Fort Bliss would
have created. See ECF No. 55-26, ¶¶ 14-16. Such “economic injur[ies] [are] quintessential
injur[ies] upon which to base standing.” Texas Democratic Party, 459 F.3d at 586.
These injuries confer standing to assert both the claim that Defendants’ expenditure of
§ 2808 funds violates the Appropriations Clause and APA, see Pls. Opening Br. 33-40, 45, and
the claim that the President’s Proclamation violates the NEA, id. at 19-30. The § 2808 border
wall expenditure itself directly causes the County’s injuries, because were it not for that
expenditure, then DOD would not need to divert funds from Fort Bliss. Enjoining that § 2808
expenditure as a violation of the Appropriations Clause and/or APA would accordingly redress
the County’s injuries. The President’s Proclamation likewise causes the County’s injuries, and
in the same way: without the Proclamation, DOD could not have invoked § 2808 at all, because

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§ 2808 authority is only triggered upon a valid NEA emergency declaration. See 10 U.S.C.
§ 2808(a). So if this Court were to declare the Proclamation unlawful, as Plaintiffs request, that
ruling would halt DOD’s use of § 2808 altogether, preventing the diversion of Fort Bliss funds
and relieving the County’s injuries. See Bennett v. Spear, 520 U.S. 154, 168-69 (1997) (standing
depends on whether plaintiffs’ injuries are “fairly traceable” to the defendant’s challenged
actions, not on whether “the defendant’s actions are the very last step in the chain of causation”).
Defendants have euphemistically labelled the diversion of funds a mere “deferr[al] [of]
military construction projects.” ECF No. 114. But the action is a “deferral” only in the empty
sense that, in a future fiscal year, Congress could hypothetically appropriate money to replenish
funding for the sacrificed projects. Such “theoriz[ing]” about future congressional action “does
not negate” the County’s present economic injury. Texas v. United States, 809 F.3d 134, 155
(5th Cir. 2015). Nor does it matter that the $20 million formerly intended for Fort Bliss has not,
as of yet, been “made available to the Secretary of the Army.” ECF No. 114 (noting that such
funds “will be made available to the Secretary of the Army when it is needed for obligation”).
DOD’s final determination to spend $3.6 billion on a border wall under § 2808 confirms that the
diversion of funds from Fort Bliss is “certainly impending”—which is all that Article III
requires. Driehaus, 573 U.S. at 158.
B.

BNHR Has Standing

Because the County clearly has standing to challenge the Proclamation and Defendants’
use of § 2808 (whether under the Appropriations Clause or the APA), this Court need not
address whether BNHR also has standing to assert those claims. See, e.g., Rumsfeld v. Forum for
Acad. & Inst. Rights, Inc., 547 U.S. 47, 53 n.2 (2006) (“the presence of one party with standing
is sufficient to satisfy Article III’s case-or-controversy requirement”). But DOD’s recent actions
confirm BNHR’s standing, too.
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“[A]n organization has standing to sue on its own behalf where it devotes resources to
counteract a defendant’s allegedly unlawful practices.” Ass’n of Cmty. Orgs. For Reform Now v.
Fowler, 178 F.3d 350, 360 (5th Cir. 1999). BNHR has standing to challenge Defendants’
actions, because they have forced BNHR to steer resources away from “its core mission” of
human rights education and “promoting immigration reform,” and toward “counsel[ing]
community members who are fearful,” “organizing [its] community in opposition to the
President’s declaration,” and “opposing the illegal [border wall] construction.” ECF No. 55-27,
¶¶ 13, 27; Pls. Opening Br. 16-19; Pls. Reply Br. 7-11. DOD’s recent actions cement BNHR’s
standing. DOD has made a final determination to spend § 2808 funds on building a border wall
in El Paso Sector 2. ECF No. 112, at 4; ECF No. 112-1, at 3. That project will involve replacing
23.51 miles of vehicle barriers with new pedestrian fencing in Hidalgo and Luna Counties, New
Mexico. Id. BNHR members live in southern New Mexico, ECF No. 55-27, ¶ 4, so the
construction there will directly affect the organization, causing it to devote more resources to
“opposing the illegal [border wall] construction,” id. ¶ 33. That, in turn, solidifies BNHR’s
standing to challenge both Defendants’ expenditure of § 2808 funds, and the President’s
Proclamation that directly enabled such expenditures.

(BNHR has standing to challenge

Defendants’ $2.5 billion wall expenditure under 10 U.S.C. § 284 for the same basic reasons. See
Pls. Opening Br. 16-19; Pls. Reply Br. 7-11.)
II.

DEFENDANTS’ RECENT ACTIONS CONFIRM THAT PLAINTIFFS HAVE AN
APA CAUSE OF ACTION
Defendants lack authority to spend any funds on a border wall beyond the $1.3 billion

that Congress appropriated for fencing in the Rio Grande Valley in the Consolidated
Appropriations Act (CAA).

Pls. Opening Br. 30-44; Pls. Reply Br. 36-52; CAA § 739

(prohibiting any “increase” in “funding for a . . . project . . . proposed in the President’s budget

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request” beyond the amount appropriated in the CAA). Such expenditures violate both the
Appropriations Clause, because they have not been affirmatively “authorized by Congress,”
United States v. MacCollom, 426 U.S. 317, 321 (1976), and the APA, because they are “contrary
to constitutional . . . power” and “in excess of statutory . . . authority,” 5 U.S.C. § 706(2).
Plaintiffs have two separate and independent causes of action to assert these claims: (1) the
equitable right to “sue to enjoin unconstitutional actions by . . . federal officers,” Armstrong v.
Exceptional Child Ctr., 135 S. Ct. 1378, 1384 (2015)—here, actions that violate the
Appropriations Clause; and (2) the APA itself, which confers a right to sue on those “adversely
affected or aggrieved by agency action,” 5 U.S.C. § 702.
In response, Defendants have pressed two main arguments. First, they have maintained
that Plaintiffs lack an equitable right of action, because their Appropriations Clause claims are in
fact statutory claims that they can assert only under the APA. Govt. Opening Br. 58-60; Govt.
Reply Br. 17-19. That argument is incorrect for the reasons given in Plaintiffs’ reply brief. Pls.
Reply Br. 53-55; see Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)
(APA “does not repeal the review of ultra vires actions recognized long before”). Second,
Defendants have argued that Plaintiffs lack an APA cause of action, because there is no “final
agency action” as to § 2808, Govt. Opening Br. 44-45; Govt. Reply Br. 19, and because
Plaintiffs fall outside the “zone of interests” of §§ 2808, 8005, 284, and the Appropriations
Clause, Govt. Opening Br. 47-49; Govt. Reply Br. 20-21. That argument likewise fails for
reasons already briefed. Pls. Reply Br. 56-59. And that failure is all the more evident now, in
light of DOD’s recent actions.

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A.

DOD’s Recent Announcements Confirm That It Has Taken “Final Agency
Action” Under § 2808

Defendants have not argued that DOD’s reprogramming of $2.5 billion from one account
to another pursuant to DOD Appropriations Act § 8005, or its expenditure of $2.5 billion on the
wall pursuant to § 284, are nonfinal, thereby conceding that they constitute final agency actions
under the APA. But Defendants have contended that “there is no ‘final agency action’ respecting
§ 2808,” because DOD “has not yet decided to authorize any projects under § 2808,” and “has
not made any decision to divert funds from Fort Bliss or anywhere else.” Govt. Opening Br. 4445; Govt. Reply Br. 19. That contention lacks merit, see Pls. Reply Br. 56-57; but to the extent it
had any, it no longer does, since DOD has now made final determinations about what border
wall projects to build with § 2808 funds, and what already-planned military construction projects
to sacrifice in favor of a border wall. See supra at 3, 6. Thus, Defendants’ “final agency action”
argument is untenable: DOD has “consummat[ed]” its “decisionmaking process” concerning
§ 2808, and has reached a decision “from which legal consequences will flow,” U.S. Army Corps
of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)—most pertinent here, Fort Bliss’s loss of
$20 million.
B.

If the Zone of Interests Test Applies, Plaintiffs Satisfy It

The zone of interests test applies only where a plaintiff asserts that the defendant has
violated a statute. See Lexmark Int’l Inc. v. Static Control Components, Inc., 572 U.S. 118, 127
(2014) (test applies to “legislatively conferred cause[s] of action” and requires “using traditional
tools of statutory interpretation”). In such cases, courts ask whether the plaintiff’s interests are
“arguably within the zone of interests . . . 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). By contrast, the zone of interests test has no application where a plaintiff claims that

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the Government has violated the Constitution. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392,
2415-2423 (2018) (declining to apply zone of interests test to Establishment Clause claim).
Here, Plaintiffs principally contend that Defendants’ expenditure of funds on a wall without
congressional authorization violates the Appropriations Clause and is therefore “contrary to
constitutional . . . power” under the APA. 5 U.S.C. § 706(2)(B). Because this claim turns on a
constitutional, not statutory, violation, the zone of interests test does not apply. To be sure,
Defendants have raised §§ 2808, 8005, and 284 as defenses to Plaintiffs’ constitutional claim.
But Defendants have identified no case where a court has applied the zone of interests test to a
statute raised by the Government in defense. That is because the zone of interests test applies
“by reference to the particular provision of law upon which the plaintiff relies.” Bennett, 520
U.S. at 175-76 (emphasis added).
Even if the zone of interests test did apply to constitutional provisions, Plaintiffs fall
within the Appropriations Clause’s zone of interests. At minimum, the Appropriations Clause
protects the intended beneficiary of congressionally appropriated funds that the Executive
Branch then “draw[s] from the Treasury” without an “Appropriation[] made by Law.” U.S.
Const. art. I, § 9, cl. 7. In this case, the County (by way of Fort Bliss) was the intended
beneficiary of $20 million in military construction funds that Defendants have now diverted
toward a border wall. The County therefore satisfies the zone of interests test.
And even if the zone of interests test applied to §§ 2808, 8005, and 284—the
Government’s statutory defenses—Plaintiffs satisfy it for those provisions as well.

Those

provisions govern reprogramming and expenditure of “military construction” and “counterdrug”
support funds. 10 U.S.C. § 2808(a) (allowing DOD to “undertake military construction projects”
with “funds that have been appropriated for military construction”); DOD Appropriations Act,

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§ 8005 (allowing reprogramming “for military functions (except military construction)” under
certain circumstances); 10 U.S.C. § 284(a) (DOD “may provide support for the counterdrug
activities . . . of any other department or agency”). The County’s injuries stem in part from
Defendants’ actions branding it a military construction zone and drug-trafficking corridor,
thereby diminishing the County’s reputation and economic prospects. See Pls. Opening Br. 1114; Pls. Reply Br. 2-7. Such injuries are “arguably within the zone of interests” of the “military
construction” and “counterdrug” support statutes at issue. Patchak, 567 U.S. at 224.
In any event, DOD’s recent actions confirm that the County at the very least falls within
§ 2808’s zone of interests. As noted, the County was the intended beneficiary of military
construction funds that DOD has now diverted away from it. A party harmed by the loss of
military construction funds obviously falls within the zone of interests of the military
construction statute invoked to strip those funds. Even the dissenting judge in Sierra Club v.
Trump, 929 F.3d 670 (9th Cir. 2019), admitted that a plaintiff “who would have been entitled to
the funds as originally appropriated” would fall within the zone of interests of a statute like
§ 2808. Id. at 715 (Smith, N.R., dissenting). Indeed, if such a plaintiff could not satisfy the zone
of interests test, then it is impossible to imagine what type of plaintiff would. As a result, DOD’s
use of § 2808 funds would be entirely unreviewable, even though courts “apply the [zone of
interests] test in keeping with Congress’s evident intent when enacting the APA to make agency
action presumptively reviewable.” Patchak, 567 U.S. at 225 (emphasis added).
III.

PLAINTIFFS RESPECTFULLY REQUEST THAT THE COURT RESOLVE
THEIR CLAIMS AS EXPEDITIOUSLY AS POSSIBLE
In all events, DOD’s recent actions reaffirm the urgent nature of this case. According to

Defendants, DOD will begin obligating § 2808 construction funds within thirty days, and could
begin border wall construction using those funds by October 23, 2019. ECF No. 112, at 3, 5-6.

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The Washington Post has reported that President Trump is seeking to “fast-track billions of
dollars’ worth of construction contracts, aggressively seize private land and disregard
environmental rules” to “complete hundreds of miles of border fence ahead of the 2020
presidential election.” 1 Given the speed with which Defendants are acting, and the ongoing
harms Defendants are inflicting on Plaintiffs, Plaintiffs respectfully ask this Court to resolve their
claims as expeditiously as possible.
After this supplemental brief (and a corresponding response, if Defendants choose to file
one), no further briefing is necessary. Now that DOD has officially diverted funds from Fort
Bliss and announced the § 2808 projects it will build, any possible lingering questions about
standing and finality have dissipated. Nor is there a need to rehash arguments about whether
Defendants’ § 2808 expenditures are lawful on the merits, as the parties have fully briefed that
issue. See Pls. Opening Br. 30-40; Govt. Opening Br. 50-51, 53-55; Pls. Reply Br. 36-44; Govt.
Reply Br. 27-30. And, as ever, there is a straightforward path to resolving the case on the merits:
(1) issue a declaratory judgment that the President’s Proclamation violates the NEA, and enjoin
DOD from spending § 2808 funds in reliance on the Proclamation; and/or (2) hold that
Defendants’ expenditure of funds on a wall beyond the $1.3 billion appropriated in the CAA—
under both §§ 2808 and 284—violates the Appropriations Clause and/or APA, and enjoin
Defendants from making such expenditures.

1

Nick Miroff & Josh Dawsey, ‘Take the land’: President Trump wants a border wall. He wants
it black. And he wants it by Election Day., Washington Post (Aug. 27. 2019), available at
https://www.washingtonpost.com/immigration/take-the-land-president-trump-wants-a-borderwall-he-wants-it-black-and-he-wants-it-by-election-day/2019/08/27/37b80018-c821-11e9-a4f3c081a126de70_story.html.
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 Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 17 of 20

CONCLUSION
For the foregoing reasons, and those given in Plaintiffs’ earlier briefing, Plaintiffs’
summary-judgment motion and a permanent injunction should be granted. In the alternative,
Plaintiffs’ preliminary-injunction motion should be granted.
Dated: September 9, 2019

Respectfully submitted,
/s/ Anton Metlitsky
Anton Metlitsky (Pro hac vice)
O’MELVENY & MYERS LLP
Seven Times Square
New York, NY 10036
(212) 326-2000
ametlitsky@omm.com
Ephraim McDowell (Pro hac vice)
O’MELVENY & MYERS LLP
1625 Eye Street NW
Washington, DC 20006
(202) 383-5300
emcdowell@omm.com
Kristy Parker (Pro hac vice)
Justin Florence (Pro hac vice)
Erica Newland (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
2020 Pennsylvania Avenue., NW, #163
Washington, DC 20006
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
justin.florence@protectdemocracy.org
kristy.parker@protectdemocracy.org
erica.newland@protectdemocracy.org
Deana K. El-Mallawany (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
125 Walnut Street, Ste. 202
Watertown, MA 02472
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
deana.elmallawany@protectdemocracy.org

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 Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 18 of 20

Stephanie Llanes (Pro hac vice)
THE PROTECT DEMOCRACY PROJECT,
INC.
222 Broadway, 19th Floor
New York, NY 10038
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
stephanie.llanes@protectdemocracy.org
David Bookbinder (Pro hac vice)
NISKANEN CENTER
820 First Street, NE
Washington, DC 20002
Telephone: (301) 751-0611
dbookbinder@niskanencenter.org
Richard Mancino (Pro hac vice)
Shaimaa M. Hussein (Pro hac vice)
Matthew Dollan (Pro hac vice)
Samantha G. Prince (Pro hac vice)
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 728-8000
Facsimile: (212) 728-8111
RMancino@willkie.com
SHussein@willkie.com
MDollan willkie.com
SPrince@willkie.com
Stuart Gerson (Pro hac vice)
EPSTEIN BECKER GREEN
1227 25th Street, NW
Washington, DC 20037
Telephone: (202) 861-4180
Email: SGerson@ebglaw.com
Laurence H. Tribe (Pro hac vice)
Carl M. Loeb University Professor and
Professor of Constitutional Law
HARVARD LAW SCHOOL*
1575 Massachusetts Avenue
Cambridge, MA 02138
Telephone: (617) 495-1767
Email: tribe@law.harvard.edu

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 Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 19 of 20

*Affiliation noted for identification purposes
only
John C. Padalino (Texas State Bar No.
24041638)
401 Congress Avenue, Suite 1540
Austin, Texas 78701
Telephone: (512) 596-2944
Facsimile: (512) 596-2944
john@padalinolaw.com
Counsel for Plaintiffs

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 Case 3:19-cv-00066-DB Document 116-1 Filed 09/09/19 Page 20 of 20

CERTIFICATE OF SERVICE
I hereby certify that on this same date, I electronically filed the foregoing document with
the U.S. District Court for the Western District of Texas by using the CM/ECF system, which
will send notifications of such filing to all CM/ECF counsel of record.
Dated: September 9, 2019

/s/ Anton Metlitsky
Anton Metlitsky (Pro hac vice)
O’MELVENY & MYERS LLP
Seven Times Square
New York, NY 10036
Telephone: (212) 326-2000
ametlitsky@omm.com

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