Case: 19-51144 Document: 00515238806 Page: 1 Date Filed: 12/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS, Plaintiffs-Appellees, v. No. 19-51144 DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants-Appellants. DEFENDANTS-APPELLANTS’ MOTION FOR STAY PENDING APPEAL OF ORDER GRANTING INJUNCTION JOSEPH H. HUNT Assistant Attorney General HASHIM M. MOOPPAN Deputy Assistant Attorney General H. THOMAS BYRON III COURTNEY L. DIXON Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 Case: 19-51144 Document: 00515238806 Page: 2 Date Filed: 12/16/2019 TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT .............................................. 1 STATEMENT ........................................................................................................................... 2 ARGUMENT ............................................................................................................................ 5 I. The Government Has a Strong Likelihood of Prevailing on Appeal .................... 6 A. Plaintiffs Lack Article III Standing ................................................................. 6 1. El Paso County................................................................................... 7 2. BNHR ................................................................................................ 10 B. Congress’s Appropriation to DHS Does Not Preclude DoD From Using its Appropriated Funds Pursuant to Its Own Statutory Grants of Authority ........................................................................................................... 12 C. The District Court Abused Its Discretion in Finding the Balance of Harms and Public Interest Justified an Injunction ..................................... 17 II. The Remaining Factors Also Support a Stay Pending Appeal ............................. 20 CONCLUSION ......................................................................................................................21 CERTIFICATE OF COMPLIANCE ADDENDUM Case: 19-51144 Cases: Document: 00515238806 Page: 3 TABLE OF AUTHORITIES Date Filed: 12/16/2019 Page(s) Association for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994) ......................................................................................... 10, 11 Association of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) ....................................................................................... 11, 12 Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) ................................................................................................ 8 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ........................................................................................................ 9, 11 Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003)............................................................................................ 9 Gringo Pass, Inc. v. Kiewitt Sw. Co., No. 09-cv-251, 2012 WL 12905166 (D. Ariz. Jan. 11, 2012) ........................................15 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1999) .............................................................................................................11 I.C.C. v. Southern Ry. Co., 543 F.2d 534 (5th Cir. 1976) ..............................................................................................14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................... 7, 9, 10 Meese v. Keene, 481 U.S. 465 (1987) ............................................................................................................... 8 Morton v. Mancari, 417 U.S. 535 (1974) .............................................................................................................14 National Cable & Telecomms. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002) .............................................................................................................14 ii Case: 19-51144 Document: 00515238806 Page: 4 Date Filed: 12/16/2019 National Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) .............................................................................................................18 NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), abrogated on other grounds by Murphy v. NCAA, 138 S. Ct. 1461 (2018) .......................................................................... 9 Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005) ................................................................................................15 Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................................... 6 Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019) ..............................................................................20 Spokeo v. Robins, 136 S. Ct. 1540 (2016) ...................................................................................................... 6, 7 Trump v. Sierra Club, 140 S. Ct. 1 (2019)....................................................................................................... 1, 5, 13 Veasey v. Abbott, 870 F.3d 387 (5th Cir. 2017) ................................................................................................ 6 Williams v. Parker, 843 F.3d 617 (5th Cir. 2019) ..............................................................................................11 Winter v. Natural Res. Def. Council, Inc., 555 U.S 7 (2008) ...................................................................................................... 17, 18, 19 Wyoming v. Oklahoma, 502 U.S. 437 (1992) .............................................................................................................10 Statutes: Consolidated Appropriations Act, 2019 Pub. L. No. 116-6, div. A, 133 Stat. 13 (Feb. 15, 2019) ............................... 2, 13, 14, 16 10 U.S.C. § 284................................................................................................................ 3, 5, 15 10 U.S.C. § 2808 ............................................................................................................. 1, 3, 15 iii Case: 19-51144 Document: 00515238806 Page: 5 Date Filed: 12/16/2019 31 U.S.C. § 1112 ......................................................................................................................16 Legislative Material: H.R. Rep. No 103-200 (1993)................................................................................................15 Other Authorities: General Accounting Office, A Glossary of Terms Used in the Federal Budget Process 80 (Sept. 2005)..........................................................................................................16 Government Accountability Office, Principles of Federal Appropriations Law, Page S-407, GAO-17-797SP (4th ed., 2017 Revision) ........................................15 Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States, 2019 WL 643819 (Feb. 15, 2019) ...................................................................................................... 3-4 iv Case: 19-51144 Document: 00515238806 Page: 6 Date Filed: 12/16/2019 INTRODUCTION AND SUMMARY OF ARGUMENT The district court entered a nationwide injunction prohibiting the Department of Defense (DoD) from continuing military construction of border barrier projects under 10 U.S.C. § 2808. The court did not find that any of those projects violate the terms of § 2808. Instead, it decided that a different statute, appropriating funds for a different agency, implicitly prohibited DoD from relying on its own statutory authority. This Court should stay the order pending appeal. The district court’s decision is based on a transparent error in interpreting the text of federal appropriations laws. Moreover, plaintiffs’ claim fails at the threshold because they cannot satisfy the fundamental requirement of Article III standing, as they are not injured by the military construction projects that have been enjoined. The district court also abused its discretion in granting an injunction. The government has a compelling interest in border security and stopping narcotics trafficking, while plaintiffs’ asserted harms are insubstantial and unrelated to the injunction. In these circumstances, a stay is manifestly warranted. Indeed, the Supreme Court recently stayed an order of a California district court that had enjoined DoD construction of other border barrier projects. Trump v. Sierra Club, 140 S. Ct. 1 (2019). We respectfully request a prompt decision on this motion to avoid further irreparable harm to the government and the public interest. Case: 19-51144 Document: 00515238806 Page: 7 Date Filed: 12/16/2019 STATEMENT A. In the Consolidated Appropriations Act, 2019 (CAA), Pub. L. No. 116-6, div. A, 133 Stat. 13 (Feb. 15, 2019), Congress appropriated funds to the Department of Homeland Security (DHS) for the 2019 fiscal year. As part of that Act, Congress appropriated a lump sum to a specific account of Customs and Border Protection (CBP), a component of DHS. Id., 133 Stat. at 18. Congress specified that “[o]f the total amount made available under” that account, $1.375 billion “shall be available only” “for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector” of the border. Id., 133 Stat. at 28. B. In the underlying decision in this case, the district court held that the CAA, by appropriating $1.375 billion to DHS for construction in the Rio Grande Valley Sector, prohibited all other agencies from using any other appropriated funds for border barrier construction. Summ. J. Order (Op.) at 26. 1. Plaintiffs are the County of El Paso, Texas (El Paso), and the Border Network for Human Rights (BNHR), a community organization whose mission is to “organize border communities through human rights education” and “mobilize [its] members to advocate for positive change in policies” affecting “the immigrant community.” ECF 55-17, at 2-4. The district court reasoned that El Paso had demonstrated an Article III injury because it is the “object” of actions to “build[] a border wall along the southern border,” Op. 9-10; it has a “reputational” injury from its “unwanted association” with “the 2 Case: 19-51144 Document: 00515238806 Page: 8 Date Filed: 12/16/2019 construction of a border wall through executive action,” id. at 10-15; and it has an economic injury because defendants’ actions posed “a serious threat to” El Paso’s “tourism and economic development,” and because defendants intended to defer $20 million in funds from road construction at Fort Bliss, a military base in El Paso, to fund certain border barrier projects, id. at 16. The district court concluded that BNHR had standing because it had “divert[ed] resources” away from its mission in order to “counsel community members who are fearful” and “oppos[e]” defendants’ construction. Id. at 21-22. 2. On the merits, the district court held that because Congress had “specifically appropriate[d]” funds to DHS for border barrier construction in the CAA, other agencies could not use their own statutory authority and appropriations to construct barriers at the southern border. Op. 26. The district court held that DoD could not use its appropriated funds to construct any border barrier pursuant to its statutory authority under 10 U.S.C. § 284, which authorizes the Secretary of Defense to “provide support for the counterdrug activities” of other agencies, including through the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7). And the court concluded that DoD could not use its appropriated funds to perform construction under 10 U.S.C. § 2808, which authorizes the Secretary of Defense for construction after a national emergency declaration by the President. 10 U.S.C. § 2808; see Presidential Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 20, 2019) 3 Case: 19-51144 Document: 00515238806 Page: 9 Date Filed: 12/16/2019 (declaring national emergency and making certain statutory authorities available to the Secretary of Defense to assist DHS at the border). According to the district court, DoD’s use of its appropriations to perform construction pursuant to its own statutory authority would, in light of the restrictions contained in the CAA’s appropriation to DHS, “flout[] the cardinal principle that a specific statute controls a general one,” and thus violate the CAA. Op. 26. The district court also concluded that § 2808 construction would “increase . . . funding for a program, project, or activity” covered by the CAA. Op. 26 (quoting CAA prohibition). The district court reasoned that the relevant “project” was a “wall along the southern border,” and thus DoD’s use of its own appropriations and statutory authorities to complete border barrier construction was “increas[ing] funding” for a “project,” in violation of the CAA. Id. at 31. C. Two months later, the district court entered a permanent injunction prohibiting the government from using military construction funds under § 2808 for any border barrier construction and a declaratory judgment that the President’s declaration of a national emergency was invalid to the extent it authorized such construction. Perm. Inj. Order (Inj.) 21.1 The district court concluded that plaintiffs had suffered irreparable injuries because “El Paso County and BNHR are central stakeholders” and the court had The district court correctly declined to enjoin the President himself or to declare the Proclamation invalid more broadly. Inj. 5-6. 1 4 Case: 19-51144 Document: 00515238806 Page: 10 Date Filed: 12/16/2019 already found that El Paso would suffer reputational and economic injury, and BNHR would suffer an organizational injury. Inj. 11-14. In weighing the balance of hardships and the public interest, the district court held that construction under § 2808 should be enjoined. Although it acknowledged the government’s interest in border security and “prevent[ing] illegal drugs from entering the country,” id. at 16-17, it suggested that “the level of deference required” to the military is different here, and that the public interest would be served by enforcing the court’s understanding of Congress’s intent in the CAA to appropriate only $1.375 billion for border construction. Id. at 17.2 Although the district court indicated (Inj. 3) that it would not stay its injunction, the government has filed a motion for stay pending appeal in district court. ECF 139. ARGUMENT In determining whether to issue a stay pending appeal, this Court considers (1) “whether the stay applicant has made a strong showing that he is likely to succeed on the merits”; (2) “whether the applicant will be irreparably injured absent a stay”; (3) “whether issuance of a stay will substantially injure the other parties interested in the proceeding”; and (4) “the public interest.” Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (quoting Nken v. Holder, 556 U.S. 418, 425-26 (2009)). These factors strongly militate in favor of a stay. The district court held that “an injunction on the use of § 284 funds will not issue” in light of Trump v. Sierra Club, 140 S. Ct. 1 (2019), in which the Supreme Court stayed pending appeal an injunction prohibiting DoD from transferring funds among its own budget accounts to construct border barriers under 10 U.S.C. § 284. Inj. 15. 2 5 Case: 19-51144 Document: 00515238806 Page: 11 Date Filed: 12/16/2019 The government has much more than a mere likelihood of success given the fundamental flaws in the district court’s analysis. As a threshold matter, plaintiffs cannot show any cognizable injury sufficient for Article III standing. In addition, the district court was wrong to read the CAA governing DHS’s budget as impliedly overriding DoD’s separate statutory authority to undertake military construction. Finally, the lopsided balance of harms strongly tilts in the government’s favor. Plaintiffs allege vague reputational and organizational injuries that are unconnected to § 2808 construction and reflect only policy disagreements with border barrier construction generally, while the government has weighty interests in border security and drug interdiction. I. The Government Has a Strong Likelihood of Prevailing on Appeal A. Plaintiffs Lack Article III Standing “The law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches, and confines the federal courts to a properly judicial role.” Spokeo v. Robins, 136 S. Ct. 1540, 1547 (2016) (citations and quotation marks omitted). To establish standing, plaintiffs must prove that they “have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs’ alleged harms do not suffice. 6 Case: 19-51144 Document: 00515238806 Page: 12 Date Filed: 12/16/2019 1. El Paso County The district court held (Op. 10-11) that El Paso County has standing because its reputation is “harmed by [its] unwanted association” with “the construction of a border wall through executive action.” Id. This holding is flawed at every level. Any reputational injury is not fairly traceable to the border-construction projects under § 2808 that are prohibited by the injunction. The closest § 2808 project to El Paso County is located approximately 100 miles away from downtown El Paso and in a different state. ECF 112-1, at 3. The other § 2808 projects are even farther from El Paso. Yet the district court made no attempt to explain how such geographically distant construction can fairly be said to harm El Paso’s reputation. Nor did the court explain how the relief it granted—a permanent injunction prohibiting the use of funds for § 2808 construction—would redress the reputational harms alleged. Indeed, § 2808 is only one of several sources of authority for border barrier construction, and it is being used to fund a limited number of projects (none of which is located in or near El Paso). The district court stated (Op. 9) that El Paso had standing because it was the “object of the border wall construction.” But none of the § 2808 projects that were enjoined are even in the same state as El Paso. El Paso’s declarants likewise did not link a claimed reputational injury to any § 2808 project. ECF 55-25, at 4-5; ECF 55-26, at 3-5. Indeed, those declarations were filed before the Secretary of Defense had approved any specific § 2808 project. Compare id., with ECF 112. El Paso’s declarants discuss construction “along the border highway in Dona Ana County, New Mexico, which is 7 Case: 19-51144 Document: 00515238806 Page: 13 Date Filed: 12/16/2019 El Paso County’s neighboring county.” ECF 55-25, at 5-6. But that construction is not being undertaken pursuant to § 2808, see ECF 95-6, at 13 (discussing § 284 projects), and is thus not subject to the injunction. El Paso’s declarants assert reputational injuries resulting from “falsehood perpetuated by the President,” but that purported injury is not connected to any § 2808 projects, see, e.g., ECF 55-26, at 6, and merely demonstrates El Paso’s policy disagreements with the President’s views concerning the need for border barrier construction generally. That policy disagreement cannot confer standing. See Barber v. Bryant, 860 F.3d 345, 355 (5th Cir. 2017) (rejecting standing based on disagreement with “a government message without a corresponding action” conferring a concrete injury). In any event, the district court’s injunction does not correct any alleged falsehoods or otherwise rehabilitate El Paso’s reputedly injured reputation; it merely prohibits certain border barrier construction based on an alleged budgetary constraint. The cases the court relied on (Op. 11-13) confirm that reputational harm confers standing only when that harm both directly stems from the specific action being challenged, and would likely be redressed by the requested relief. Meese v. Keene, 481 U.S. 465, 469, 472-77 (1987) (politician had standing to challenge statute’s categorization of film as “political propaganda” because plaintiff demonstrated that screening the film while it was so categorized would harm his reputation); Foretich v. United States, 351 F.3d 1198, 1214 (D.C. Cir. 2003) (plaintiff had standing to challenge statute that “brand[ed] him a child abuser and an unfit parent”); NCAA v. Governor of New Jersey, 730 F.3d 208, 8 Case: 19-51144 Document: 00515238806 Page: 14 Date Filed: 12/16/2019 220-21 (3d Cir. 2013) (sports leagues had standing to challenge statute licensing sports gambling because the statute would associate the leagues with gambling and increase the possibility of “game-rigging”), abrogated on other grounds by Murphy v. NCAA, 138 S. Ct. 1461 (2018). By contrast, the § 2808 projects at issue do not involve El Paso at all, and enjoining the projects based on alleged budgetary constraints would not rehabilitate any asserted harms to El Paso’s reputation. The district court additionally held (Op. 15-16) that El Paso has standing based on possible reductions in tax revenues. This asserted injury is even further removed from any § 2808 construction because it derives from speculation about how third parties will react to its asserted reputational harms. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013) (“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.”). And El Paso’s vague and conclusory assertions about lost revenue fall far short of the factual evidence needed to establish standing at summary judgment. See Lujan, 504 U.S. at 561. Moreover, the tax-loss theory of standing is contrary to binding precedent. The Supreme Court has squarely held that standing cannot be based on allegations that governmental actions have injured a locality’s “economy and thereby caused a decline in general tax revenues,” but rather must be based on evidence of “a direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (emphasis added). Here, El Paso merely speculates that it will lose money due to 9 Case: 19-51144 Document: 00515238806 Page: 15 Date Filed: 12/16/2019 reduced tourism and business development as a result of border-barrier construction elsewhere. E.g., ECF 55-25, at 5-6; ECF 55-26, at 5-6. The court believed El Paso had sustained a “direct” injury, as required by Wyoming, because the Department of Defense deferred a $20 million construction project at Fort Bliss—an Army installation in El Paso County—to fund § 2808 projects. Op. 16; ECF 136, at 13. But El Paso itself would receive no funds as part of that federal construction project to build roads at Fort Bliss. See ECF 123-2, at 89. Any reduction in El Paso’s tax revenues that might result is therefore indirect by definition. In any event, El Paso’s declarations contain no specific facts about how the deferral of the Fort Bliss project will harm El Paso’s economy, and are thus insufficient to establish standing at summary judgment. See Lujan, 504 U.S. at 561. 2. BNHR The district court held that BNHR—an advocacy organization based in El Paso, Texas—has standing because the organization has allegedly “divert[ed] its resources from its traditional activities toward counseling and organizing community members in relation to” defendants’ construction. Op. 22 (quotation marks omitted). That rationale, too, is foreclosed by precedent. “The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing on the organization.” Association for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Center Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“ARC”). The organization must 10 Case: 19-51144 Document: 00515238806 Page: 16 Date Filed: 12/16/2019 show that the action it is challenging—here, the § 2808 construction projects—has caused a “concrete and demonstrable injury to the organization’s activities.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1999). An organization lacks standing where its costs are not fairly traceable to an injury it suffers from the specific conduct it is challenging, but are rather self-inflicted injuries that the organization has chosen to incur. Williams v. Parker, 843 F.3d 617, 622 (5th Cir. 2019); Association of Community Orgs. for Reform Now v. Fowler, 178 F.3d 350, 359-61 (5th Cir. 1999) (“ACORN”); accord Clapper, 568 U.S. at 418 (rejecting “self-inflicted injuries” as basis for standing). BNHR avers that it has had to spend additional organizational resources “to denounce the administration’s false rhetoric” and “propose policy remedies.” ECF 55-27, at 7-8. But “no action of [defendants] forced [BNHR] to spend” that money; rather, BNHR has “made the decision, on its own,” to advocate against government policies with which it disagrees. Williams, 843 F.3d at 622. That advocacy work does not establish standing. See id. (organization lacked standing where it spent funds “organizing [a] signature drive” to repeal law it opposed). If that were sufficient, “any sincere plaintiff could bootstrap standing by expending its resources in response to actions of another.” ARC, 19 F.3d at 244. BNHR has not established that defendants’ construction under § 2808, in particular, has required it to divert its resources. Indeed, BNHR’s declaration does not mention any particular § 2808 project. BNHR instead claims that it has been forced to expend resources for a host of reasons unrelated to § 2808 construction, 11 Case: 19-51144 Document: 00515238806 Page: 17 Date Filed: 12/16/2019 such as retaining local attorneys to “document Border Patrol’s and ICE’s violations of constitutional rights.” ECF 55-27, at 8; but see ACORN, 178 F.3d at 359-61 (organization lacked standing where it provided no evidence to link its costs “to any of the conduct by [defendant] that [it] claims” is illegal). The district court emphasized (Op. 19) BNHR’s claim that “the impending construction of more border barriers” has “effectively ended” one of BNHR’s major policy initiatives, the “‘Hugs Not Walls’ campaign,” in which BNHR “facilitates reunification between families from both sides of the border.” See ECF 55-27, at 1112. But the construction of border barriers at specific locations would not prevent efforts to bring families together legally and with the cooperation of authorities; unsurprisingly, therefore, BNHR’s declaration acknowledges that a significant reason “the campaign cannot continue” is because “law enforcement is no longer supportive,” id. at 12, not because of any § 2808 project. B. Congress’s Appropriation to DHS Does Not Preclude DoD From Using its Appropriated Funds Pursuant to Its Own Statutory Grants of Authority Even if plaintiffs could establish standing, the government is likely to succeed in demonstrating that the district court erred on the merits. In the context of this motion, this Court need not address the threshold question whether plaintiffs may even assert a cause of action to enforce any limitations the CAA may impose. Cf. Trump v. Sierra Club, 140 S. Ct. 1 (2019). Even assuming (but not conceding) for present purposes that 12 Case: 19-51144 Document: 00515238806 Page: 18 Date Filed: 12/16/2019 plaintiffs have a cause of action, the CAA does not limit the construction that the district court erroneously enjoined. 1. According to the district court, “the plain text of the CAA restricts the amount and location of funding for border barrier construction,” and precludes DoD from using its separate funds and statutory authorities to complete border construction projects. Op. 28. That is clearly incorrect. Nothing in the CAA’s text purports to prohibit agencies other than DHS from using their own appropriations to complete border construction projects pursuant to their own statutory grants of authority. The CAA appropriated a lump sum of money to an account within DHS’s budget—CBP’s “Procurement, Construction, and Improvements” account—and specified that “[o]f the total amount available under” that specific account, $1.375 billion “is for the construction of primary fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.” CAA, 133 Stat. at 18, 28. The CAA nowhere says that the appropriation to DHS prohibits other agencies from relying on separate statutory authority to expend their own appropriated funds on border barrier construction. When Congress sought to place restrictions on the construction of border barriers, it did so explicitly. In a separate section of the CAA, Congress provided that “[n]one of the funds made available by this Act or prior Acts are available for the construction of pedestrian fencing” within five specified areas of the border, such as “the Santa Ana Wildlife Refuge,” and “the National Butterfly Center.” CAA, § 231, 13 Case: 19-51144 Document: 00515238806 Page: 19 Date Filed: 12/16/2019 133 Stat. at 28 (emphasis added). The government has complied with these restrictions, and has not constructed any border barriers in the specified areas, under any statutory authority, including § 2808. But nothing in the CAA precludes DoD from using its funds in service of its own statutory goals. In reaching its contrary conclusion, the district court relied on the interpretive canon that the “specific controls the general.” Op. 21. But while “[i]t is true that specific statutory language should control more general language when there is a conflict between the two,” that interpretive canon does not apply where “there is no conflict.” National Cable & Telecommunications Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327, 335-36 (2002); I.C.C. v. Southern Ry. Co., 543 F.2d 534, 539 (5th Cir. 1976) (“Only where there is irreconcilable conflict do we need to consider . . . which is the more specific” statute). Indeed, “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535 (1974). There is no conflict between Congress’s appropriation to DHS for border barrier construction pursuant to DHS’s statutory authority, and DoD’s use of its own appropriations to complete border barrier construction under its separate statutory authorities. Section 2808 authorizes DoD to complete certain military construction to support the use of the armed forces where statutory criteria are satisfied. 10 U.S.C. § 2808; see also 10 U.S.C. § 284 (authorizing DoD to construct “roads and fences . . . to block drug smuggling corridors across international boundaries” at the request of 14 Case: 19-51144 Document: 00515238806 Page: 20 Date Filed: 12/16/2019 another agency). There is nothing inconsistent about DoD completing authorized projects under these statutes with its own appropriations, and DHS completing border barrier projects with its appropriations. Since the early 1990s, military personnel have provided assistance in building and reinforcing infrastructure at the southern border. See H.R. Rep. No. 103-200, at 330-31 (1993); Gringo Pass, Inc. v. Kiewitt Sw. Co., No. 09cv-251, 2012 WL 12905166, at *1 (D. Ariz. Jan. 11, 2012). Because there is no conflict, there is no basis to rely on the specific-controls-the-general canon. By contrast, Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005), involved a single federal agency determining which of two appropriations to that agency, “in the very same [appropriations] bill,” should be used for a particular purpose. Id. at 16. In such a circumstance, Congress presumptively intends the agency to use its specific appropriation rather than its general appropriation. See Government Accountability Office, Principles of Federal Appropriations Law, Page S-407, GAO-17-797SP (4th ed., 2017 Revision) (“[I]f an agency has a specific appropriation for a particular item, and also has a general appropriation broad enough to cover the same item, it does not have an option as to which to use. It must use the specific appropriation.”). No authority supports the district court’s remarkable holding here, that Congress’s appropriation to one agency (DHS) impliedly precluded another agency (DoD) from using its separate appropriations and statutory authorities. 15 Case: 19-51144 Document: 00515238806 Page: 21 Date Filed: 12/16/2019 2. The district court’s reliance on § 739 of the Financial Services and General Government Appropriations Act, 2019 (a component of the CAA), fares no better. Op. 29-30. That provision states: None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act. Pub. L. No. 116-6, div. D, § 739, 133 Stat. at 197. The district court, relying on what it viewed as the “ordinary meaning” of the term “project,” concluded that defendants’ construction under § 2808 will increase funding for the “project” of a “wall along the southern border.” Op. 31. But the phrase “program, project, or activity” in an appropriations statute has an established and specific meaning. The GAO has defined “program, project, or activity” as an “[e]lement within a budget account.” General Accounting Office, A Glossary of Terms Used in the Federal Budget Process 80 (Sept. 2005); see 31 U.S.C. § 1112 (requiring GAO to publish standard budget terms). None of the § 2808 construction projects increases funding for an element within any DHS budget account. DoD is using funds separately appropriated in its budget for § 2808 military construction, and that is a distinct “program, project, or activity” from DHS’s own border-barrier construction authority. The mere fact that appropriations to different agencies can be used for 16 Case: 19-51144 Document: 00515238806 Page: 22 Date Filed: 12/16/2019 similar purposes does not transform a valid use of one source of appropriated funds into an improper expenditure. C. The District Court Abused Its Discretion in Finding the Balance of Harms and Public Interest Justified an Injunction The government also has a strong likelihood of demonstrating that the district court abused its discretion in failing to properly balance the equities and consider the public interest. “An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.” Winter v. Natural Resources Def. Council, 555 U.S. 7, 32 (2008). “In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24. (quotation marks omitted). The district court misweighed the balance of harms in granting plaintiffs a permanent injunction. The court concluded that plaintiffs had established irreparable injuries on the basis of El Paso’s “tarnished” reputation and asserted indirect economic injuries from the deferral of a construction project at Fort Bliss, as well as BNHR’s organizational harms. But as discussed, the closest § 2808 project to El Paso County is nearly 100 miles away; the injunction does not redress El Paso’s purported reputational injury regardless; El Paso has no entitlement to the $20 million intended for building roads on a federal military base; and BNHR’s injuries are self-inflicted and unrelated to § 2808 in any event. See supra pp. 10-13. 17 Case: 19-51144 Document: 00515238806 Page: 23 Date Filed: 12/16/2019 In contrast to plaintiffs’ unsubstantiated and insubstantial injuries, the district court’s injunction directly and significantly interferes with the government’s ability to advance its “compelling interests in safety and in the integrity of our borders.” National Treasury Emps. Union v. Von Raab, 489 U.S. 656, 672 (1989). The record includes ample evidence of the high rates of drug smuggling between ports of entry at the southern border, as well as recent increases in apprehensions following illegal crossings. See, e.g., ECF 95-6, at 85-15; ECF 123-2, at 42-48. In authorizing specific construction projects under § 2808, the Secretary of Defense concluded, based on advice from the Chairman of the Joint Chiefs of Staff, that the identified projects were necessary to support the use of the armed forces at the southern border. ECF 112-1, at 1-2; ECF 123-2, at 4247. The district court’s opinion does nothing to call that judgment into question. Indeed, the court made no holding with respect to the lawfulness of § 2808 construction, other than to (erroneously) hold that DoD could not use its own funds to engage in that construction because Congress had separately appropriated $1.375 billion to DHS. In these circumstances, the district court abused its discretion in granting a permanent injunction because the government and public interest “plainly outweigh[]” plaintiffs’ vague reputational, economic, and organizational injuries. Winter, 555 U.S. at 26, 33. Plaintiffs’ interests here are even less substantial than those in Winter, where the Supreme Court reversed a preliminary injunction prohibiting the Navy from using sonar technology in training exercises at sea. In reversing, the Supreme Court explained that 18 Case: 19-51144 Document: 00515238806 Page: 24 Date Filed: 12/16/2019 “the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy’s ability to conduct realistic training exercises, and the injunction’s consequent adverse impact on the public interest and national defense,” which “plainly outweighed” the harms to researching and observing marine mammals asserted by the plaintiffs. Id. at 24, 33. The district court committed similar error here. The district court distinguished Winter on the ground that the court’s injunction does not bar the “unique or sole source of funding” for border construction. Op. 17. But the Supreme Court in Winter explained that the President “ha[d] determined that training with active sonar [was] essential to national security,” and that courts must “give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” 555 U.S. at 24-25. Similarly here, the Secretary of Defense, in conjunction with the Joint Chiefs of Staff, approved specific § 2808 projects pursuant to the President’s national-emergency declaration after concluding that those projects were necessary to support armed forces that have been deployed to assist DHS in gaining operational control of the border. See, e.g., ECF 1232, at 45-47. The government’s interest in completing that construction significantly outweighs any of the vague harms asserted by plaintiffs, particularly where § 2808 construction is not occurring in the vicinity of El Paso, and BNHR has offered nothing to demonstrate that any § 2808 projects have injured its organizational mission. 19 Case: 19-51144 II. Document: 00515238806 Page: 25 Date Filed: 12/16/2019 The Remaining Factors Also Support a Stay Pending Appeal For the same reasons that the district court abused its discretion in balancing the equities in granting the preliminary injunction, the balance of equities strongly supports a stay. The injunction causes substantial and irreparable harm to the government and public interest in border security and drug interdiction. See supra pp. 17-19; ECF 1392, at 3-5. The court’s injunction imposes additional otherwise-unnecessary costs as a result of contract suspension and possible eventual termination. ECF 139-2, at 3-8. Even if the government ultimately prevails, these sunk costs will be unrecoverable. Plaintiffs, by contrast, have demonstrated no concrete, substantial harms from any § 2808 construction. Significantly, a day after the district court’s decision here, a district court in the Northern District of California concluded that the terms of § 2808 did not support defendants’ construction, but nonetheless exercised its discretion to stay its own injunction pending appeal. That district court concluded that “the challenged construction should be permitted to proceed pending resolution of the merits,” relying on the Supreme Court’s stay of an earlier injunction against DoD’s internal transfer of funds for § 284 construction. Sierra Club v. Trump, No. 19-cv-00872, at 45 (N.D. Cal. Dec. 11, 2019). This Court should reach the same result, allowing military construction pursuant to § 2808 to continue while the Court considers the government’s appeal. At a minimum, this Court should stay the district court’s injunction to the extent it enjoins DoD from using funds other than the $20 million diverted from Fort Bliss, 20 Case: 19-51144 Document: 00515238806 Page: 26 Date Filed: 12/16/2019 the only aspect of § 2808 construction to which plaintiffs have even any arguable connection. Apart from that, there is no connection whatsoever between plaintiffs and any § 2808 construction. CONCLUSION For the foregoing reasons, the order granting an injunction should be stayed pending appeal. Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General HASHIM M. MOOPPAN Deputy Assistant Attorney General H. THOMAS BYRON III /s/ Courtney L. Dixon COURTNEY L. DIXON Attorneys, Appellate Staff Civil Division U.S. Department of Justice, Room 7246 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 353-8189 DECEMBER 2019 21 Case: 19-51144 Document: 00515238806 Page: 27 Date Filed: 12/16/2019 CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 5,186 words. This motion was prepared using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced typeface. /s/ Courtney L. Dixon Courtney L. Dixon