Case 3:19-cv-00066-DB Document 130 Filed 10/21/19 Page 1 of 15

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,
MARK T. ESPER, in his official capacity as
Secretary of Defense,
KEVIN McALEENAN, in his official capacity as
Acting Secretary of Homeland Security,
TODD T. SEMONITE, in his official capacity as
Commanding General
United States Army Corps of Engineers,
DAVID BERNHARDT, in his official capacity as
Acting Secretary of the Interior,
STEVEN T. MNUCHIN, in his official capacity as
Secretary of the Treasury,
Defendants.

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Civil Action No. 3:19-cv-66-DB
SUPPLEMENTAL BRIEF
ADDRESSING SCOPE OF
REMEDY

 Case 3:19-cv-00066-DB Document 130 Filed 10/21/19 Page 2 of 15

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

THE COURT SHOULD ISSUE A DECLARATORY JUDGMENT
THAT THE PROCLAMATION’S INVOCATION OF § 2808 AND
DEFENDANTS’ USE OF §§ 2808 AND 284 FUNDS ON BUILDING A
BORDER WALL ARE UNLAWFUL .................................................................. 2

II.

THE COURT SHOULD PERMANENTLY ENJOIN THE AGENCY
HEAD DEFENDANTS FROM USING §§ 2808 AND 284 FUNDS ON A
BORDER WALL ................................................................................................... 3

CONCLUSION .............................................................................................................................. 7

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TABLE OF AUTHORITIES
Page(s)
Cases
Dep’t of Texas, Veterans of Foreign Wars v. Texas Lottery Comm’n,
760 F.3d 427 (5th Cir. 2014) ...................................................................................................... 3
eBay Inc. v. MercExchange, LLC,
547 U.S. 388 (2006) .................................................................................................................... 4
Franklin v. Massachusetts,
505 U.S. 788 (1992) .................................................................................................................... 2
Gill v. Whitford,
138 S. Ct. 1916 (2018) ................................................................................................................ 7
Goodman v. Harris Cnty.,
239 F. App’x 869 (5th Cir. 2007) ............................................................................................... 3
McLaughlin v. Mississippi Power Co.,
376 F.3d 344 (5th Cir. 2004) ...................................................................................................... 3
Milliken v. Bradley,
433 U.S. 267 (1977) .................................................................................................................... 5
Missouri v. Jenkins,
515 U.S. 70 (1995) .................................................................................................................. 5, 6
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................... 4
Paulsson Geophysical Servs., Inc. v. Sigmar,
529 F.3d 303 (5th Cir. 2008) ...................................................................................................... 4
Pendergest-Holt v. Certain Underwriters at Lloyd’s of London,
600 F.3d 562 (5th Cir. 2010) ...................................................................................................... 3
Sierra Club v. Trump,
2019 WL 2715422 (N.D. Cal. 2019) .......................................................................................... 3
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) .................................................................................................. 2, 5
Trump v. Sierra Club,
2019 WL 3369425 (S. Ct. 2019)................................................................................................. 6

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TABLE OF AUTHORITIES
(Continued)

Page(s)

Utah v. Evans,
536 U.S. 452 (2002) .................................................................................................................... 2
Vais Arms, Inc. v. Vais,
383 F.3d 287 (5th Cir. 2004) ...................................................................................................... 3
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ................................................................................................................ 2, 4
Statutes
28 U.S.C. § 2201 ............................................................................................................................. 2

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INTRODUCTION
On October 11, 2019, this Court held that Plaintiffs “have standing and are entitled to
summary judgment based on their [Consolidated Appropriations Act] claim.” ECF No. 129, at 8;
see id. at 25 (“this Court will enter summary judgment”); id. at 32. “The Proclamation” and
Defendants’ “funding plan,” the Court reasoned, “violate[] the CAA generally and specifically
violate[] § 739.” Id. at 24; see id. at 25, 32. First, because “the CAA specifically appropriates
$1.375 billion for border-wall expenditures,” it precludes Defendants from “transfer[ring] $6.1
billion of funds appropriated for other more general purposes—military construction, under
§ 2808, and counterdrug activities, under § 284.” Id. at 26; see id. at 29 (“the Proclamation’s use
of other legislation to commit additional funds to border barrier construction conflicts with the
CAA”). Second, “§ 739 prohibits Defendants’ plan to fund the border wall because the plan is
barred by that provision’s general rule and the plan does not fall within its exception.” Id. at 30.
In its opinion, the Court requested that Plaintiffs “file a proposed preliminary injunction
specifying the scope of said injunction,” as well as “additional briefing” on whether Plaintiffs can
“obtain equitable relief against the President.” Id. at 25, 33. As explained below, this Court
should: (1) issue a declaratory judgment that the Proclamation is unlawful to the extent it
authorizes border wall construction using funds appropriated by the CAA for “military
construction” under 10 U.S.C. § 2808, and that Defendants’ use of funds appropriated by the CAA
for “military construction” under 10 U.S.C. § 2808 and “support for counterdrug activities” under
10 U.S.C. § 284 funds on building a border wall is unlawful; and (2) permanently enjoin
Defendants Esper, McAleenan, Semonite, Bernhardt, and Mnuchin (“the agency head

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Defendants”) from using funds appropriated by the CAA for “military construction” under § 2808
and “support for counterdrug activities” under § 284 on building a border wall. 1
ARGUMENT
I.

THE COURT SHOULD ISSUE A DECLARATORY JUDGMENT THAT THE
PROCLAMATION’S INVOCATION OF § 2808 AND DEFENDANTS’ USE OF
§§ 2808 AND 284 FUNDS ON BUILDING A BORDER WALL ARE UNLAWFUL
This Court expressly held that “[t]he Proclamation is unlawful” and “the funding plan

violates the CAA generally and specifically violates § 739.” ECF No. 129, at 24. In accordance
with that holding, the Court should issue a declaratory judgment that the Proclamation is unlawful
to the extent it authorizes border wall construction using funds appropriated by the CAA for
“military construction” under § 2808, and that Defendants’ use of funds appropriated by the CAA
for “military construction” under § 2808, and “support for counterdrug activities” under § 284 on
building a border wall is unlawful. See 28 U.S.C. § 2201(a) (court “may declare the rights and
other legal relations of any interested party seeking such declaration”); ECF No. 52, at 47
(Plaintiffs seeking declaratory relief). The Supreme Court has long “assume[d] it is substantially
likely that the President and other executive . . . officials w[ill] abide by an authoritative
interpretation of . . . statut[ory] and constitutional provision[s] by [a] District Court.” Franklin,
505 U.S. at 803; Utah v. Evans, 536 U.S. 452, 464 (2002) (same). The same should hold true here.

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Given the Court’s ruling, Plaintiffs can obtain all their requested relief through a declaratory
judgment and permanent injunction against the agency head Defendants. See Texas v. United
States, 809 F.3d 134, 188 (5th Cir. 2015) (affirming injunction against various executive officials);
Franklin v. Massachusetts, 505 U.S. 788, 802 (1992) (“injunctive relief against executive officials
like the Secretary of Commerce is within the courts’ power”); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 589 (1952) (enjoining Secretary of Commerce from seizing steel mills).
This Court therefore need not enjoin the President.
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II.

THE COURT SHOULD PERMANENTLY ENJOIN THE AGENCY HEAD
DEFENDANTS FROM USING §§ 2808 AND 284 FUNDS ON A BORDER WALL
The Court granted Plaintiffs’ motion for summary judgment, ECF No. 129, at 8, 25, 32,

which is a final judgment that “ends the litigation on the merits,” McLaughlin v. Mississippi Power
Co., 376 F.3d 344, 350 (5th Cir. 2004); Goodman v. Harris Cty., 239 F. App’x 869, 875 (5th Cir.
2007) (summary judgment order “resolv[ing] all of the claims in [a] case” is a “final judgment”).
When a court grants a plaintiff summary judgment, a permanent—rather than preliminary—
injunction should issue. See, e.g., Dep’t of Texas, Veterans of Foreign Wars v. Texas Lottery
Comm’n, 760 F.3d 427, 441 (5th Cir. 2014) (en banc) (affirming summary judgment and
permanent injunction); Vais Arms, Inc. v. Vais, 383 F.3d 287, 296 (5th Cir. 2004) (same); Sierra
Club v. Trump, 2019 WL 2715422, at *6 (N.D. Cal. June 28, 2019) (granting summary judgment
and permanently enjoining border wall construction under § 8005). After all, there is no need to
determine whether the plaintiff is “likely to succeed on the merits” (as a court does in a
preliminary-injunction posture, see Pendergest-Holt v. Certain Underwriters at Lloyd’s of
London, 600 F.3d 562, 568-69 (5th Cir. 2010)) once the court determines that the plaintiff has
succeeded on the merits. Plaintiffs here sought a preliminary injunction only in the alternative to
summary judgment and a permanent injunction. See ECF No. 54, at 50. Because this Court
correctly granted Plaintiffs summary judgment, a permanent injunction is the proper form of
equitable relief.
To be entitled to a permanent injunction, a plaintiff must demonstrate: “(1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would

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not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006).
Plaintiffs satisfy the permanent-injunction factors. As this Court held, Plaintiffs have
suffered serious reputational, economic, and organizational injuries because of the Proclamation
and Defendants’ use of §§ 2808 and 284 funds on building a border wall. See ECF No. 129, at 922. Those injuries are irreparable absent an injunction: the County’s reputational and economic
harm will persist as long as Defendants are allowed to carry out their plan to build a wall; and
BNHR will continue to divert resources to counteract Defendants’ unlawful actions as long as
those actions remain in effect. Money damages cannot substitute for injunctive relief in this case,
because Defendants’ actions are causing Plaintiffs compounding and incalculable harm. See
Paulsson Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303, 313 (5th Cir. 2008) (injunctive relief
proper where damages “could not be quantified”).
Where, as here, the government is a party to the case, the third and fourth permanentinjunction factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). For the reasons already
given, Plaintiffs would experience severe hardship absent an injunction. Defendants, by contrast,
have no legitimate interest in taking actions that violate the CAA, or in spending funds that
Congress appropriated for purposes other than a border wall. And while the importance of border
security should not be minimized, that concern cannot override the public’s interest in the
Executive Branch complying with the law. That is especially so when Congress—the People’s
representatives—determined that securing the border required only $1.375 billion, not $6.1 billion,
to be spent on a wall. See Youngstown, 343 U.S. at 655 (“men have discovered no technique for
long preserving free government except that the Executive be under the law, and that the law be
made by parliamentary deliberations”).

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The proper scope of a permanent injunction turns on “the nature and scope of the [relevant]
violation.” Missouri v. Jenkins, 515 U.S. 70, 88 (1995); see Milliken v. Bradley, 433 U.S. 267,
281-82 (1977) (noting “[t]he well-settled principle that the nature and scope of the remedy are to
be determined by the violation”). In Texas v. United States, 809 F.3d 134 (5th Cir. 2015), for
instance, the Fifth Circuit affirmed a nationwide injunction against the Executive Branch’s
“Deferred Action for Parents of Americans” program, reasoning that “immigration policy” is a
“comprehensive and unified system” and that “a geographically-limited injunction would be
ineffective.” Id. at 188. Moreover, it noted that “the Constitution vests the District Court with
‘the judicial Power of the United States,” which “is not limited to the district wherein the court sits
but extends across the country.” Id. Accordingly, the court concluded, “[i]t is not beyond the
power of a court, in appropriate circumstances, to issue a nationwide injunction.” Id.
Here, the injunction’s proper scope follows naturally from this Court’s opinion:
Defendants’ wall funding plan—consisting of the Proclamation, § 2808, and § 284—must be
enjoined. This Court held that Plaintiffs were injured by all of Defendants’ challenged actions.
See ECF No. 129, at 18 (“El Paso County has standing to bring its claims”); id. at 22 (“All BNHR’s
organizational injuries . . . have a ‘causal nexus’ to Defendants’ actions, and would be redressed
if this Court were to enjoin those actions.”). And it held that “[t]he Proclamation is unlawful” and
Defendants’ wall “funding plan violates the CAA generally and specifically violates § 739.” Id.
at 24; see id. at 26 (“Defendants’ funding plan . . . will transfer $6.1 billion of funds appropriated
for other more general purposes—military construction, under § 2808, and counterdrug activities,
under § 284” and “therefore . . . violates the CAA”). Because Defendants’ entire “funding plan”—
which again, involves the Proclamation, § 2808, and § 284—injures Plaintiffs and violates the law,

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that entire plan must be enjoined. Anything less would not fit with the “nature and scope” of the
“violation” that this Court found. Jenkins, 515 U.S. at 88.
Based on the Supreme Court’s order in Trump v. Sierra Club, 2019 WL 3369425 (S. Ct.
2019), this Court did find “Plaintiffs’ argument that the DOD Secretary exceeded his statutory
authority under § 284 unviable,” ECF No. 129, at 6. But Plaintiffs understand the Court’s
statement to mean only that § 8005 “authorizes [DOD] to transfer the $2.5 billion for § 284 Support
for Counterdrug Activities” from its military personnel account to its counterdrug support account.
Id. Even if that is true, DOD’s expenditure of the same $2.5 billion on the wall under § 284 violates
the CAA and § 739, as this Court expressly held. See, e.g., id. at 30 (holding that “tap[ping]
appropriated military construction funds under § 2808 and counterdrug support funds under §
284” violates § 739 (emphasis added)). That $2.5 billion expenditure under § 284 must therefore
be enjoined, along with the Proclamation and § 2808 expenditure.
Defendants have previously argued that “at the absolute most, the Court should enjoin only
the use of funds associated with the Fort Bliss project.” ECF No. 126, at 15. They based that
argument exclusively on the erroneous premise that Plaintiffs’ sole harm is losing “the $20 million
associated with the project at Fort Bliss.” Id. This Court has now rejected that premise, holding
that Plaintiffs’ harms include, but are not limited to, the loss of Fort Bliss funds. See ECF No.
129, at 9-22. In addition to losing Fort Bliss funds, the Court found that the County has suffered
reputational and economic injury based on the Proclamation itself and all wall construction, see
id. at 10-18; id. at 12-13 (“the Proclamation and subsequent government actions of obtaining
funding from various sources to build a border wall . . . incurs the risk of harm to El Paso County’s
reputation”), and that BNHR has suffered organizational injury based on its diversion of resources
in responding to all of Defendants’ unlawful actions, see id. at 18-22; id. at 22 (“the Proclamation

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and Defendants’ subsequent actions have required BNHR to expend significant resources that
could have, and would have, gone elsewhere”). In short, there is no basis for tying an injunction
to Fort Bliss when Plaintiffs’ injuries and Defendants’ violations sweep far beyond Fort Bliss.
Under Defendants’ own logic—i.e., that “a plaintiff’s remedy” is tied “to the inadequacy that
produced his injury in fact,” ECF No. 126, at 15 (quoting Gill v. Whitford, 138 S. Ct. 1916, 1930
(2018))—the injunction here should bar Defendants’ use of §§ 2808 and 284 funds on building a
border wall.
CONCLUSION
In sum, this Court should issue a declaratory judgment that the Proclamation is unlawful
to the extent it authorizes border wall construction using funds appropriated by the CAA for
“military construction” under § 2808, and that Defendants’ use of funds appropriated by the CAA
for “military construction” under § 2808 and “support for counterdrug activities” under § 284 on
building a border wall is unlawful. In addition, the Court should permanently enjoin the agency
head Defendants from using funds appropriated by the CAA for “military construction” under
§ 2808 and “support for counterdrug activities” under § 284 on building a border wall.

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Dated: October 21, 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
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

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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
*Affiliation noted for identification purposes
only
John C. Padalino (Texas State Bar No.
24041638)
401 Congress Avenue, Suite 1540
Austin, Texas 78701

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Telephone: (512) 596-2944
Facsimile: (512) 596-2944
john@padalinolaw.com
Counsel for Plaintiffs

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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: October 21, 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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