Case 3:19-cv-00066-DB Document 137 Filed 12/10/19 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

EL PASO COUNTY, TEXAS and 
BORDER NETWORK FOR HUMAN 
RIGHTS, 
Plaintiffs, 


v. 

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



On October 11, 2019, the Court issued a Memorandum Opinion granting
Plaintiffs El Paso County, Texas, (?El Paso County?) and Border Network for Human Rights?s
(collectively, ?P1aintiffs?) ?Motion for Summary Judgment or, in the alternative, a
Preliminary Injunction? (?Motion for Suminary Judgment?) and denying Defendants? Donald J.
Trump, Mark T. Esper, Chad P. Wolf, David Bernhardt, Steven T. Mnuchin, William Barr, John
F. Bash, and Todd T. Semonite?s (collectively, ?Defendants?) ?Cross-Motion to Dismiss or for
Summary Judgment, and Opposition to Plaintiffs? Motion for Summary Judgment and a
Preliminary Injunction.? Mem. Op., ECF No. 129. Therein, the Court ordered Plaintiffs to
?le a proposed preliminary injunction specifying the scope of said injunction and Defendants
were given an opportunity to respond. Id. at 33.

On this day, the Court considered Plaintiffs? ?Supplemental Brief Addressing
Scope of Remedy? (?Plaintiffs? Supplemental Brief?) ?led in the above-captioned case on

October 21, 2019. ECF No. 130. The Plaintiffs were granted leave to ?le an Amended

 

1. In suits against a public officer in an of?cial capacity who cease to hold of?ce while the action is pending, the
of?cer's successor is automatically substituted as a party. Fed. R. Civ. P. 25(d).

Case Document 137 Filed 12/10/19 Page 2 of 21

Proposed Order on October 24, 2019. ECF No. 132. On October 28, 2019, Defendants ?led
their ?Supplemental Brief Addressing Scope of Remedy? (?Defendants? Supplemental Brief?).
ECF No. 134. After due consideration, the Court is of the opinion that a declaratory judgment
and permanent injunction shall be granted in Plaintiffs? favor.

BACKGROUND

On October 11, 2019, this Court held that Plaintiffs had standing to sue
Defendants. Mem. Op. 32, ECF No. 129. Further, it held that because the Presidential
Proclamation on Declaring a National Emergency Concerning the Southern Border of the United
States (?the Proclamation?) seeks additional funds for border barrier funding in violation of the
2019 Consolidated Appropriations Act generally and 739 of the CAA speci?cally, it
is unlawful. Id.

In its opinion, the Court requested that Plaintiffs ??le a proposed preliminary
injunction specifying the scope of said injunction.? Id..at 33. In Plaintiffs? Supplemental
Brief, Plaintiffs ask the Court to:

(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, [Wolf], Semonite,

Bernhardt, and Mnuchin (?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.

Pls.? Supp. Br. 5?6, ECF No. 130.

Defendants counter in their Supplemental Brief that the Court should decline to

enter an injunction and should exclude the Proclamation from the Court?s declaratory relief.

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Defs.? Supp. Br. .1, 2?3, ECF No. 134. Alternatively, if the Court did enter any injunctive
relief, Defendants argue that it should enter an administrative stay pending appeal. 1d. at
13?14. The Court disagrees with Defendants and will not stay its decision to permanently
enjoin their use of 2808 ?inds for border barrier funding, though it will not extend this 
injunction to 284 ?lnds.
LEGAL STANDARDS

To obtain any injunction, a plaintiff must show:

(1) that [they have] 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 not be disserved by a permanent

injunction.
Monsanto Co. v. Geertson Seed Forms, 561 U.S. 139, 156?58 (2010); see also, eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006), and Winter2 v. Nat. Res. Def Council, 555 U.S.
7, 32?33 (2008). ?[I]njunctive relief is a drastic remedy, not to be applied as a matter of
course.? 0 ?Donnell v. Harris Cty., 892 F.3d 147, 155 (5th Cir. 2018) (quoting Marshall v.
Goodyear Tire Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977)) (internal quotations omitted).

Injunctive relief never ?follow[s] from success on the merits as a matter of
course,? Winter, 555 U.S. at 32, and, with any equity case, the nature of the violation
determines the scope of the remedy.? Swarm v. Charlotte-Mecklemburg Bd. of Ed., 402 U.S. 1,

16 (1971). As such, an injunction ?should be no more burdensome to the defendant than

necessary to provide complete relief.? Califano v. Yamasakz?, 442 U.S. 682, 702 (1979); see

 

2. Throughout this opinion, the Court refers to these four factors as the ?Winter? or ?permanent injunction? factors
for sake of brevity.

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also John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004) (?The district court must
narrowly tailor an injunction to remedy the speci?c action which gives rise to the order?).

Furthermore, ?[t]he existence of another adequate remedy does not preclude
a declaratory judgment that is otherwise appropriate.? Fed. R. Civ. P. 57. A declaratory
judgment is appropriate when it will ?terminate the controversy? giving rise to the proceeding.
Fed. R. Civ. P. 57 advisory committee?s 1937 note. It is within the discretion of a trial court to
grant declaratory relief on motion of party. Delno v. Market St. R. Co., 124 F.2d 965, 967 (9th
Cir. 1942) (citing 6 of the Uniform Declaratory Judgment Act).

ANALYSIS

To begin, Plaintiffs argue that the Court should issue a declaratory judgment that
the Proclamation?s invocation of 2808 and the Defendants? use of 2808 and 284 funds on
the border wall are unlawful. Pls.? Supp. Br. 2, ECF No. 130. This declaratory judgment and
the permanent injunction would only need to issue against the agency head Defendants, rather
than the President himself. Id. at 2 n. 1.

Next, Plaintiffs assert that a permanent, rather than preliminary, injunction should
issue to stop the agency head Defendants from using these funds for border wall construction
because the Court?s grant of Plaintiffs? Motion for Summary Judgment was a ?nal judgment
ending the litigation on the merits. Id. at 3. Finally, Plaintiffs go through the permanent
injunction factors and describe how they meet each. Id. at 4?7.

In response, Defendants call Plaintiffs? requested injunction overbroad and
unjusti?ed because Plaintiffs have failed to demonstrate irreparable injury and the Government?s
compelling interests in constructing border barriers outweigh the Plaintiffs? interests. Defs.?

Supp. Br. 1, ECF No. 134. And Defendants claim that Plaintiffs? proposed injunction con?icts

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with the Supreme Court?s recent order staying an injunction that the District Court for the
Northern District of California entered. Id. at 1?2 (citing Trump v. Sierra Club, 140 S. Ct. 1
(2019)). Finally, Defendants argue that the Proclamation should be excluded from the Court?s
declaratory judgment as there is no basis for such extraordinary relief that would necessarily run
against President Trump in his of?cial capacity. Id. at 2?3.

Because both sides and the Court agree that any declaratory judgment shall not
run against the President, the Court does not address the merits of this argument. Instead, the
Court discusses the merits of a declaratory judgment against the agency head Defendants.
Then, because the Court?s injunction 2808 funds does not con?ict with Supreme Court
precedent, the Court weighs the permanent injunction factors to conclude that a permanent 
injunction shall be granted in Plaintiffs? favor, though more narrowly tailored than the injunction
they propose on both 284 and 2808 funds.

I. A Declaratory Judgment Shall Enter Against the Agency Head Defendants.

Plaintiffs highlight that this Court expressly held that ?[t]he Proclamation is
unlawful? and ?the funding plan violates the CAA generally and speci?cally violates 739.?
Pls.? Supp. Br. 2, ECF No. 130 (quoting Mem. Op. 24, ECF No. 129) (internal quotations
omitted). In accordance with that holding, Plaintiffs argue that this Court should issue a
declaratory judgment that the Proclamation is unlawful to the extent it authorizes border wall
construction using funds that the CAA appropriated for ?military construction? under 2808.

Id. (citing 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?. And, according to Plainti??s, the declaratory judgment should state that the agency head

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Defendants? use of CAA funds appropriated for~ ?military construction? under 2808, and
?support for counterdrug activities? under 284 on building a border wall is unlawful. Id.
Defendants counter that ?such an order would not be appropriate in light of the
Court?s merits determination, which did not conclude the Proclamation was unlawful.? Defs.?
Supp. Mot. 13, ECF No. 134. Defendants highlight that this Court?s Memorandum Opinion
only concluded that the use of 2808 was inconsistent with the CAA. Id. Thus, according to
Defendant, no declaratory judgment .should issue against the Proclamation. Id.
A declaratory judgment is appropriate here because it will ?terminate the
controversy? giving rise to the proceeding. See Fed. R. Civ. P. 57 advisory cormnittee?s 1937
note. Contrary to Defendants? argument, the conclusion in the Memorandum Opinion reads:
. ?[b]ecause the Proclamation seeks additional funds for border barrier funding in violation of the
CAA generally and 739 of the CAA speci?cally, it is unlawful. There is no genuine dispute
as to any material fact, so Plaintiffs are entitled to judgment as a matter of law.? Mem. Op. 32,
ECF No. 129. It is within this Court?s discretion to grant declaratory relief on Plaintiffs?
motion. See Delno, 124 F.2d at 967 (citing 6 of the Uniform Declaratory Judgment Act).
Thus, a declaratory judgment shall be granted in Plaintiffs? favor against the agency head
Defendants? attempt to use CAA funds appropriated for ?military construction? under 2808 for
border wall construction above and beyond the lawfully appropriated $1.375 billion. CAA
230, 231. However, it will not extend to the CAA funds appropriated for ?support for
counterdrug activities? under 284, explained further below.
11. The Court?s Decision to Enjoin Does Not Con?ict with Supreme Court Precedent.
Defendants point out that the Supreme Court has already stayed an injunction

issued by another district court prohibiting the DOD from proceeding with the 284 border

Case Document 137 Filed 12/10/19 Page 7 of 21

barrier projects. Defs.? Supp. Br. 7, ECF No. 134 (citing Sierra Club, 140 S. Ct. 1). In issuing
that stay, the Supreme Court determined that the balance of the equities tipped in the
Govemment?s favor. Id. (citing Nken v. Holder, 556 US. 418, 434 (2009) (explaining that stay
factors include irreparable injury, the balance of hardships, and the public interest)); Sierra Club,
140 S. Ct. at 1. Consequently, the Defendants argue that there is no basis for this Court to issue
an injunction regarding the 284 projects that would effectively override the Supreme Court?s
order. Defs.? Supp. Br. 7, ECF No. 134. And this Court agrees.

As acknowledged in this Court?s Memorandum Opinion, the Supreme Court
granted a stay in Defendants? favor, reasoning ?that the Government has made a suf?cient
showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting
Secretary?s compliance with 8005.? Sierra Club, 140 S. Ct. at 1. Because DOD
Appropriations Act, 8005, authorizes the Secretary of the Department of Defense to transfer
the $2.5 billion for 284 Support for Counterdrug Activities, this Court found Plaintiffs?
argument that the DOD Secretary exceeded his statutory authority under 284 unviable. Mem.
Op. 6, ECF No. 129. However, this conclusion and the Supreme Court?s decision do not
mandate that this Court is prohibited from enjoining the use of 2808 funds to augment border
wall funding in violation of the CAA. See id.

111. The Winter Factors Tip in Favor of Plaintiffs, so a Permanent Injunction Shall Issue
Against Defendants.

Plaintiffs ask the Court to issue a permanent injunction against the agency head
Defendants ?'om using 2808 funds on a border wall, while Defendants claim that Plaintiffs are
not entitled to such relief because they cannot demonstrate irreparable injury, and the balance of
the equities and public interest weigh against injunctive relief. Pls.? Supp. Br. i, ECF No. 130;

Defs.? Supp. Br. 4, 6, ECF No. 134.

Case Document 137 Filed 12/10/19 Page 8 of 21

Because Plaintiffs satisfy the four Winter factors, the Court disagrees with the
Defendants and issues a permanent injunction against the agency head Defendants? use of
additional 2808 funds to fund border barrier construction. After addressing the ?rst Winter
factor, irreparable injury, the Court will turn to the third and fourth factors, the balance of the
equities and public interest, respectively. Because Defendants do not address the second Winter
factor?thatremedies available at law, such as monetary damages, are inadequate to compensate
for the injury?the Court will agree with Plaintiffs? argument that ?[m]oney damages cannot
substitute for injunctive relief in this case? without further discussion. Pls.? Supp. Br. .4, ECF
No. 130 (citing Paulsson Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303, 313 (5th Cir. 2008)).

1. Plaintiffs Have Suffered Irrenarable Inm

Plaintiffs claim irreparable injury citing this Court?s conclusion that Plaintiffs
have standing due to their reputational, economic, and organizational injuries. Id. at 8 (citing
Mem. Op. 9?22, ECF No. 129). Further, according to the Plaintiffs, ?[t]hose 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.? Id.

First, Defendants attack the viability of reputational harm as the basis for an
injunction. Defs.? Supp. Br. 4, ECF No. 134. Second, Defendants argue that Plaintiffs?
economic injury is indirect and, thus, carmot form the basis for an injunction. Id. at 4?5.
Finally, according to Defendants, reallocation of resources also does not justify an

injunction. Id. at 5?6.

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i. Plaintiffs have shown more than reputational harm, which alone supports
. an injunction.

As an initial matter, Defendants assert that Plaintiffs have not submitted any
evidence to establish that they are injured by speci?c 2808 projects that the Department of
Defense (?the plans to undertake, as all of Plaintiffs? declarations pre-date the Secretary
of Defense?s decision. .Id. at 4. This Court rejected this same argument in its Memorandum
Opinion as it related to standing because there is more than a substantial risk that the DOD will
use 2808 funds on a border wall, at Fort Bliss?s expense. Mem. Op. 24, ECF No. 129.

However, Defendants arguethat standing is a separate and independent inquiry
than evaluating irreparable harm for an injunction, which requires separate and convincing proof.
Defs.? Supp. Br. 4, ECF No. 134 (citing City of Los Angeles v. Lyons, 461 US. 95, 103 (1983);
0 ?Shea v. Littleton, 414 US. 488, 499 (1974); White v. Carlucci, 862 F.2d 1209, 1212 (5th Cir.
1989)). All the cases that Defendants cite for this proposition are inapposite in this context as
they involve distinguishable fact patterns and do not illustrate how the concrete injury facet of
the standing inquiry is insuf?cient to satisfy the irreparable harm requirement for equitable relief.

First, Carlucci, involves an employment dispute wherein respondent
claimed Title VII plaintiffs did not need to establish irreparable harm at all and the Fi?h Circuit
merely held that irreparable harm was a requirement for an injunction to issue, not that concrete
injury is insufficient to meet the test. 862 F.2d at 1212. In Littleton, the Supreme Court
distinguished between the case or controversy requirement of standing and the irreparable injury
Winter factor?again distinct from the assertion Defendants make that the concrete injury
requirement of standing is insuf?cient to establish irreparable injury. 414 US. at 499.
Moreover, Littleton involved the particularly fraught area of criminal prosecution and enjoining

state actors that enveloped distinct federalism issues, not relevant to this case. Id. Likewise, in

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Lyons, the Supreme Court distinguished between the case or controversy requirement and
irreparable injury; it did not hold that concrete injury may never suf?ce to show irreparable
harm. 461 US at 103. Distinguishing between the case or controversy requirement and
irreparable harm does not necessarily imply, as Defendants argue, that showing concrete injury is
insuf?cient to show irreparable harm.

Furthermore, even if concrete injury did not suf?ce on its own, Carlucci
illustrates that irreparable injury is intimately linked with the second Winter factor. 862 F.2d at
1212. The. Supreme Court emphasized in Carlucci that the injuries all could be made whole by
money damages or other relief, thus were not irreparable. Id. In contrast, the Plaintiffs here .
will not be made whole with traditional remedies at law?and Defendants do not contest this.
See supra 8.

Next, Defendants cite Sampson v. Murray in which ?the Supreme Court
recognized that reputational harm ?falls far short of the type of irreparable injury which is a
necessary predicate to the issuance? of an injunction.? Id. (quoting 415 US. 61, 91?92 (1974)).
Thus, according to Defendants, El Paso County?s reputational injury from the President?s
proclamation itself carmot serve as the basis for injunctive relief against construction pursuant to
statutory authorities dependent on that proclamation. Id.

However, the Court disagrees with Defendants? analysis of Sampson v. Murray
for two reasons. First, Sampson dealt with a distinguishable factual situation involving a
respondent who was a probationary worker alleging humiliation and reputational harm after
being discharged without additional procedural safeguards. 415 US. at 91. The Supreme
Court highlighted that it was not the discharge itself that was the harm, but ?only that she was

entitled to additional procedural safeguards in effectuating the discharge.? Id. The Court

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concluded ?that no signi?cant loss of reputation would be in?icted by procedural irregularities in
effectuating respondent?s discharge, and that whatever damage might occur would be fully
corrected by an administrative determination requiring the agency to conform to the applicable
regulations.? Id.

Second, while the Court concluded that even assuming reputational damage did
occur, it would not suf?ce for irreparable injury, the Court added a footnote:

We recognize that cases may arise in which the circumstances
surrounding an employee?s discharge, together with the resultant
effect on the employee, may so far depart from the normal situation
that irreparable injury might be found. Such extraordinary cases
are hard to de?ne in advance of their occurrence. We have held
that an insuf?ciency of savings or dif?culties in immediately
obtaining other employment?extemal factors common to most
discharged employees and not attributable to any unusual actions
relating to the discharge itself?will not support a ?nding of
irreparable injury, however severely they may affect a particular
individual. But we do not wish to be understood as foreclosing
relief in the genuinely extraordinary situation. Use of the court?s
injunctive power, however, when discharge of probationary
employees is an issue, should be reserved for that situation rather
than employed in the routine case.

Id. at 92, n.68 (citing Wettre v. Hague, 74?F.Supp. 396 (Mass. 1947); vacated and remanded on
other grounds, 168 F.2d 825 (lst Cir. 1948)).

Therefore, this Court refuses to extend the conclusion in Sampson to this case,
especially when the Supreme Court was careful to con?ne its conclusions to the facts of that case
and speci?cally left open the possibility of irreparable injury in other employment situations with
a ?resu1t[ing] effect on the reputation that warrants an injunction. See id. Far
from foreclosing injunctive relief from all entities suffering reputational harm, the Supreme

Court carefully left open the possibility. See id.

Moreover, here El Paso County?s reputational harm is distinguishable in

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important ways from Sampson. To begin, E1 Paso-County is far from a mere probationary
worker entitled to less procedural safeguards than a permanent employee. Id. at 81. El Paso
County and BNHR are central stakeholders. See Mem. Op. 9, ECF No. 129. Indeed, this
Court concluded that El Paso County is the object of the Proclamation, entitled to protection
from Defendants? statutory violations. Id. And unlike the Supreme Court in Sampson, this
Court cannot summarily conclude ?that no signi?cant loss of reputation would be in?icted by
procedural irregularities in effectuating respondent?s discharge, and that whatever damage might
occur would be fully corrected by an administrative determination requiring the agency to
conform to the applicable regulations? 415 US. at 91. This Court has already concluded that
Plaintiffs? reputational harm is signi?cant. . See Mem. Op. at 10?14. ECF No. 129. Finally,
unlike the plaintiff in Sampson who had other recourse through the administrative agency,
Defendants do not contest the second Winter factor that no other adequate remedies at law can
compensate Plaintiffs? injury. See generally Defs.? Supp. Br., ECF No. 134. While the
reputational harm alone is enough to satisfy the irreparable injury requirement, Plaintiffs also
have demonstrated economic harm.

ii. Plainti?Ys economic harm is irreparable absent an injunction.

Defendants next argue that El Paso County?s purported loss of tax revenue from
the deferral of the roads project at Fort Bliss also cannot support a ?nding of irreparable injury
because it is a generalized grievance insuf?cient to support standing. Id. at 4 (citing Iowa ex
rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985)). Defendants claim that any decision to
the contrary would con?ict with Wyoming v. Oklahoma, where the Supreme Court recognized
standing to challenge ?a direct injury in the form of a loss of speci?c tax revenues,? but

distinguished cases where ?actions taken by United States Government agencies [have injured

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their] econom[ies] and thereby caused a decline in general tax revenues.? Id. at 4?5 (quoting
502 US. 437, 448 (1992)) (internal quotations omitted). In reaching that conclusion, the
Supreme Court emphasized that States must establish a direct link between the tax at issue and
the administrative action being challenged to meet the requirements for Article standing. Id.
at 5 (citing Wyoming, 502 US. at 448).

Defendants argue that the direct causal connection that the Supreme Court found
critical to the ?nding of an injury in Wyoming is not present in this case, as El Paso merely
asserts generalized allegations of harm resulting from reduced tourism and business
development, as well as the deferral of the roads project at Fort Bliss. Id. at 5. Defendants
point to the af?davit of Judge Samaniego, who is responsible for the County?s tax rate and
budget, in which only the threat of generalized ?economic harm? is raised. 1d. (citing Decl. of
Judge Samaniego 2, 16 ECF No. 55-26). Defendants conclude that this is fatal to Plaintiffs?
claims and to their request for equitable relief. Id.

This Court has already rejected this argument because the diversion of resources
from Fort Bliss can hardly be described as generalized?it is directly tied to the unlawful deferral
of resources to border wall funding in violation of the CAA. Mem. Op. 4, ECF No. 129. Far
from a general decline in tax revenue, Defendants will divert $20 million away from a planned
military construction project at Fort Bliss in El Paso County. Supp. Notice of the DOD
Decision 3, ECF No. 114. ?Fort Bliss is the lifeblood of the El Paso economy,? contributing
billions of dollars and creating thousands of jobs. Samaniego Decl.1[ 15, ECF. No. 55-26.
Losing funds that had been appropriated for use at Fort Bliss ?creates the imminent prospect of
economic harm to El Paso County.? Id. fl 16. That loss of ?mds also represents a missed

opportunity to ?obtain a benefit,? which can also suf?ce to show injury in fact. N.E. Associated

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Gen. Contractors v. City of Jacksonville, 508 US. 656, 666 (1993). Defendants recognize the
legitimacy of this economic harm when they contest the breadth of the Plaintiffs? proposed
injunction, but are forced to admit that ?the absolute most Plaintiffs are entitled to'is an
injunction prohibiting DOD from using the $20 million in military construction funds initially
associated with Fort Bliss.? Defs. Supp. Br. 12?13. And in addition to the economic and
reputational harm of El Paso County, BNHR has also suffered irreparable harm.
BNHR 's organizational harm is irreparable absent an injunction.

Defendants claim that diversion-of-resources theory fails to carry
burden to show irreparable injury in the absence of its requested injunction. Defs.?
Supp. Br. 5?6, BCF No. 134. In Defendants? retelling, BNHR has not established that its
reallocation of resources has imposed concrete irreparable harm beyond simply undertaking a
different form of border policy advocacy. Id.

This too the Court has already addressed to the contrary in its Memorandum
Opinion and does so again here because BNHR has established irreparable injury. Mem. Op.
18?22, ECF No. 129. More than being forced to undertake a different form of border policy
advocacy, resources have been drained and diverted, as illustrated by the cancelation of
a signature event and additional expenditures to counteract Defendants? unlawful actions that
differ from its routine expenses. Id. at 18, 21. Because BNHR and El Paso County have
satis?ed the ?rst and second Winter factors, irreparable harm that cannot be treated with
traditional remedies at law, the Court will address the remaining factors.

2. The Balance of Eguities and Public Interest Weigh in Favor of Injunctive Relief.
Where, as here, the Government is a party to the case, the third and fourth

permanent injunction factors merge: the balance of the equities and public interest. See Nken v.

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Holder, 556 U.S. 418, 435 (2009).

Plaintiffs reiterate the irreparable injury facts described above, which would cause
severe hardship absent an injunction and tips the balance of the equities in their favor. See Pls.?
Supp. Br. 8, ECF No. 130. Plaintiffs further argue that Defendants 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, Id. And while the importance of border security should not
be minimized, according to Plaintiffs, that concern cannot override the public?s interest in the
Executive Branch complying with the law. Id. That is especially so when Congress?the
that securing the border required only $1.375 billion, not
$6.1 billion, to be spent on a wall. Id. (citing Youngstown Sheet Tube Co. v. Sawyer, 343
U.S. 579, 655 (1952)).

Defendants argue to the contrary that these factors tip in their favor because the
Supreme Court has recognized that the Government has ?compelling interests in safety and in the
integrity of our borders.? Defs.? Supp. Br. 6, ECF No. 134 (citing Nat ?l reasury Emps. Union
v. Von Raab, 489 U.S. 656, 672 (1989))? Defendants address 284 and 2808 projects
separately.

284 construction shall not be enjoined.

Because the Court agrees with the Supreme Court, as stated above, an injunction
on the use of 284 funds will not issue. See supra 7. However, Defendants largely repeat
their arguments for why equity and public interest weigh against a permanent injunction on both
284 and 2808 ?nding for border wall construction. Defs.? Supp. Br. 8, ECF No. 134.

Thus, the Court will address Defendants? arguments as they pertain to 2808.

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ii. 2808 construction shall be enjoined.

Defendants argue that enjoining 2808 projects would prohibit the Government
from taking critical steps needed to prevent the continuing surge of illegal drugs from entering
the country through the southern border. Defs.? Supp. Br. 6, 7?9, ECF No. 134 (citing United
States v. Guzman-Padilla, 573 F.3d 865, 889 (9th Cir. 2009) (Government has a ?strong interest
in ?interdicting the ?ow of drugs? entering the United States)). Defendants explain that
these undisputed harms ?plainly outweigh[ Plaintiffs? asserted injuries arising from
construction with 2808 funds. Id. (citing Winter, 555 US. at 26, 33). And according to
Defendants, Plaintiffs? asserted reputational, economic, and organizational harms, which arise
principally ?om the Proclamation?s message, have essentially no connection to the legal
violation of the CAA that the Court identi?ed. Id. Given that, and in light of Defendant?s
self-proclaimed ?weighty and undisputed interest in undertaking projects to assist with drug
interdiction at the southern border, it would be an abuse of discretion for this Court to award the
?extraordinary remedy? of a permanent injunction on [2808 construction to provide Plaintiffs
relief from the speci?c violation the Court identi?ed.? 1d. at 7 (citing Winter, 555 US. at 22).

Defendant?s ?rst citation to Van Raab, see supra 15, is unpersuasive in this
context because while the Supreme Court did hold that the Government has ?compelling
interests in safety and in the integrity of our it did so in contrast to the less
compelling privacy expectations of an armed customs of?cer who had to submit to urine
analysis. 489 US. at 672. Likewise, Guzman-Padilla does not counsel a ruling in
Defendants? favor as it was similarly decided within a distinct Fourth Amendment context. 573
F.3d at 889 (9th Cir. 2009).

Drawing upon Guzman-Padilla for support, Defendants overstate this Court?s

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permanent injunction as aimed at all 284 projects?and impliedly 2808 projects. See Defs.?
Supp. Br. 6, 8, ECF No. 134. Far from enjoining all 2808 projects, this Court only enjoins the
use of funds to increase funding in contravention of the ?xed amount prescribed in the CAA.

See in?a 20. Defendants are not prohibited ?'om taking steps to prevent illegal drugs from
entering the country through the southern border, but they are prohibited from violating the
CAA. Id.

. Next, Defendants liken Plaintiffs to the unsuccessful plaintiffs in Winter whose
interests in whale watching trips, observing marine mammals underwater, and conducting
scienti?c research on marine mammals was outweighed by both the Navy?s interest and the
public interest in sonar training exercises. 555 US. at 26. An injunction on these unique
training exercises would force the Navy to deploy unprepared antisubmarine forces and, thus,
jeopardize the safety of the entire feet. Id. The Supreme Court was careful to limit its holding
because course, military interests do not always trump other considerations, and we have
not held that they do.? Id.

Far from enjoining a unique or sole source of funding, which would make this
case more analogous to Winter, this injunction merely stops the unlawful augment of the funds
that were already appropriated for border wall funding. See Mem. Op. 32, ECF No. 129.
Finally, granting a preliminary injunction would not ?disserve the public interest.? Pls.? Mot.
Summ. J. 50, ECF No. 54 (quoting Planned Parenthood of Gulf Coast Inc. v. Gee, 862 F.3d 445,
479 (5th Cir. 2017). To the contrary, because Defendants? actions are unlawful and the
people?s to augment the border wall budget as Defendants
attempt, the public interest would be served by halting them. Id.

Finally, Defendants argue that both the Government and the public have a

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Case 3:19-cv-00066-DB Document 137 Filed 12/10/19 Page 18 of 21

compelling interest in ensuring that its military forces are properly supported with necessary
resources for successful missions. Defs.? Supp. Br. 7, ECF No. 134. Defendants cite
Goldman v. Weinberger for the proposition that courts must ?give great deference to the
professional judgment of military authorities concerning the relative importance of a particular
military interest.? 475 US. 503, 507 (1986). However, the Supreme Court was careful in that
case to limit its holding to the particular military context where First Amendment rights are
necessarily circumscribed. Id. So when it held that the Air Force did not have to make an
exception to its dress code for religious apparel, it did so with great deference to military
judgment. Id. at 509. This context is distinct from the present case and so is the level of
deference required. See id. at 507. Thus, Plaintiffs satisfy all four Winter factors and a
permanent injunction shall issue in their favor.

For the same reasons, Defendants do not have compelling reasons justifying an
administrative stay of this decision as they have requested, though they are free to pursue a stay
pending appeal before the Fifth Circuit. Defs.? Supp. Mot. 13?14, ECF No. 134; see Fed. R.
App. P. 8.

3. A Permanent Injunction, Rather than Preliminm Injunction, Is Appropriate Here.

The Court granted Plaintiffs? Motion for Summary Judgment, which is a ?nal
judgment that ?ends the litigation on the merits.? McLaughlin v. Mississippi Power Co., 376
F.3d 344, 350 (5th Cir. 2004). When a court grants a plaintiff summary judgment, a
permanent?rather than preliminary?injunction should issue. See, e. Dep ?t of Texas,
Veterans of Foreign Wars v. Texas Lottery Comm 760 F.3d 427, 441 (5th Cir. 2014) (en banc)
(af?nning summary judgment and permanent injunction); Vais Arms, Inc. v. Vais, 383 .3d 287,

296 (5th Cir. 2004) (same); Sierra Club v. Trump, 2019 WL 2715422, at *6 (N .D. Cal. June 28,

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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
Undemn?iters at Lloyd ?5 of London, 600 F.3d 562, 568?69 (5th Cir. 2010)) once the court
determines that the plaintiff has succeeded on the merits. Because this Court granted Plaintiffs?
summary judgment and because Plaintiffs have met all four Winter factors, a permanent
injunction is the proper form of equitable relief.

IV. The Permanent Injunction on the Use of 2808 Funds Beyond the $1.375 Billion in
the CAA Is Not Overbroad.

Defendants make much of the difference between the Plaintiffs? original and
amended proposed injunction order, calling the latter especially overbroad. Defs.? Supp. Br.
9?10. The relevant portion of Plaintiffs? original Proposed Order reads: the Defendants ?are
enjoined from border wall construction using funds appropriated by the 2019 Consolidated
Appropriations Act for ?military construction? under 10 U.S.C. 2808, and ?support for
counterdrug activities? under 10 U.S.C. 284.? Proposed Order 2, ECF No. 130-1 (emphasis
added). The Plaintiffs? Amended Proposed Order reads: the Defendants ?are enjoined from
border wall construction using ?inds appropriated for ?military construction? under 10 U.S.C. 
2808, and ?support for counterdrug activities? under 10 U.S.C. 284.? Amended Proposed
Order 2, ECF No. 131-1. The bold language has been taken out and, according to Defendants,
this shows that Plaintiffs are aware that an injunction is inappropriate because no ?funds
appropriated by the 2019 are being used to carry out the disputed construction. Defs.?
Supp. Br. 9 (citing Mem. Op. 30?3 1, ECF No. 129). Defendants go on to reargue the merits of
the prohibition on additional funding for border wall construction, limiting that

prohibition to only other provisions within the CAA itself. Id. The Court disagreed in its

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Case Document 137 Filed 12/10/19 Page 20 of 21

3

Memorandum Opinion and continues to uphold the ?general principle of statutory interpretation?
that ?a more speci?c statute'will be given precedence over a more general one,? which
necessitates an injunction against the unlawful augment of funds for border wall construction.
Mem. Op. 25, ECF No. 129 (quoting Nevada v. Dep ?t of Energy, 400 F.3d 9, 16 (DC. Cir.
2005)) (internal quotations omitted).
CONCLUSION

After succeeding on the merits of their claim at summary judgment, Plaintiffs are
entitled to a declaratory judgment against the agency head Defendants? unlawful attempt to
augment the CAA funds with 2808 ?tnds above the appropriated $1.375 billion. Far from
con?icting with the Supreme Court?s decision in Sierra Club, this Court?s decision is not based
on whether the DOD Secretary exceeded his statutory authority under 284 and, indeed, the
Court deemed Plaintiffs? argument relying on this line of reasoning invalid. Because Plaintiffs
have demonstrated irreparable harm, an inability of traditional remedies at law to rectify that
harm, and the balance of the equities and public interest weigh in their favor, they are entitled to
a permanent injunction against Defendants? use of 2808 funds for border barrier construction.

IT IS HEREBY ORDERED that a DECLARATORY JUDGMENT ISSUE
. declaring the Proclamation 9844 of February 15, 2019, 84 Fed. Reg. 4949, UNLAWFUL to the
extent it authorizes agency head Defendants Mark T. Esper, Chad P. Wolf, Todd T. Semonite,
David Bernhardt, and Steven T. Mnuchin to use 2808 funds beyond the $1 .375?billion in the

2019 Consolidated Appropriations Act for border wall construction.

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Case 3:19-cv-00066-DB Document 137 Filed 12/10/19 Page 21 of 21

IT IS FINALLY ORDERED that agency head Defendants Mark T. Esper, Chad
P. Wolf, Todd T. Semonite, David Bernhardt, and Steven T. Mnuchin are PERMANENTLY
ENJOINED from using 2808 funds beyond the $1.375 billion in the 2019 Consolidated
Appropriations-Act for border wall construction.

(1-
SIGNED this [0 ?ci?y of December 2019.



 

ONORABLE DAVID BRIONES
SENIO UNITED STATES DISTRICT JUDGE

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