Case: 19-51144 Document: 00515337823 Page: 1 Date Filed: 03/09/2020 No. 19-51144 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT EL PASO COUNTY, TEXAS; BORDER NETWORK FOR HUMAN RIGHTS, Plaintiffs-Appellees Cross-Appellants, v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, In his official capacity; MARK ESPER, SECRETARY, DEPARTMENT OF DEFENSE, In his official capacity; CHAD F. WOLF, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, In his official capacity; DAVID BERNHARDT, Secretary, U.S. DEPARTMENT OF THE INTERIOR, In his official capacity; STEVEN T. MNUCHIN, SECRETARY, U.S. DEPARTMENT OF TREASURY, In his official capacity; TODD T. SEMONITE, In his official capacity as Commanding General United States Army Corps of Engineers, Defendants-Appellants Cross-Appellees. On Appeal from the United States District Court for the Western District of Texas, El Paso Division, No. 3:19-cv-00066-DB Hon. David Briones BRIEF FOR APPELLANTS 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, Room 7246 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 353-8189 Case: 19-51144 Document: 00515337823 Page: 2 Date Filed: 03/09/2020 STATEMENT REGARDING ORAL ARGUMENT The government respectfully requests oral argument. The district court entered a nationwide injunction prohibiting the United States Department of Defense from continuing military construction of border-barrier projects. A motions panel of this Court stayed that injunction pending appeal. The government believes oral argument could provide substantial assistance to this Court in understanding the important issues in the case. Case: 19-51144 Document: 00515337823 Page: 3 Date Filed: 03/09/2020 TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT INTRODUCTION................................................................................................................ 1 STATEMENT OF JURISDICTION ................................................................................. 3 STATEMENT OF THE ISSUES ....................................................................................... 3 STATEMENT OF THE CASE .......................................................................................... 3 I. Statutory And Regulatory Background ......................................................... 3 II. Procedural History .......................................................................................... 7 SUMMARY OF ARGUMENT ......................................................................................... 11 STANDARD OF REVIEW ............................................................................................... 14 ARGUMENT ....................................................................................................................... 15 I. Plaintiffs Have No Right to Sue.............................................................................. 15 A. B. Plaintiffs Lack Article III Standing ............................................................. 15 1. El Paso’s Reputation Is Not Injured By Section 2808 Construction, Which Is Not Even Occurring In The County ................................................................................................. 15 2. El Paso’s Alleged Indirect Economic Injuries Are Neither Legally Cognizable Nor Factually Established ................ 18 3. BNHR’s Alleged Organizational Injuries Are SelfInflicted Expenditures ....................................................................... 21 Plaintiffs Cannot Satisfy the Zone-of-Interests Requirement ................. 24 Case: 19-51144 Document: 00515337823 Page: 4 Date Filed: 03/09/2020 II. Congress’s Appropriation to DHS Does Not Preclude DoD From Using its Appropriated Funds Pursuant to Its Own Statutory Grants of Authority .................................................................................................. 27 III. The District Court Abused Its Discretion in Finding the Balance of Harms and Public Interest Justified an Injunction .......................................... 34 CONCLUSION ................................................................................................................... 39 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ADDENDUM ii Case: 19-51144 Document: 00515337823 Page: 5 Date Filed: 03/09/2020 TABLE OF AUTHORITIES Cases: Page(s) Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) .......................................................................................................... 26 Association for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241 (5th Cir. 1994) ................................ 22 23 Association of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) ...................................................................................... 22 23 Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) ........................................................................................... 17 Bennett v. Spear, 520 U.S. 154 (1997) .......................................................................................................... 26 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) .......................................................................................................... 27 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ..................................................................................................... 19 22 Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) ..................................................................................................... 24 26 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .......................................................................................................... 33 Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) ....................................................................................... 18 Gill v. Whitford, 138 S. Ct. 1926 (2018) ................................................................................................. 21 39 Gringo Pass, Inc. v. Kiewitt Sw. Co., No. 09-cv-251, 2012 WL 12905166 (D. Ariz. Jan. 11, 2012) ................................... 5 31 iii Case: 19-51144 Document: 00515337823 Page: 6 Date Filed: 03/09/2020 Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) .......................................................................................................... 26 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .......................................................................................................... 22 Hernandez v. Mesa, 140 S. Ct. 335 (2020) ........................................................................................................ 26 Interstate Commerce Comm’n v. Southern Ry. Co., 543 F.2d 534 (5th Cir. 1976) ........................................................................................... 30 Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir. 1985) ...................................................................................... 19-20 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) .......................................................................................................... 26 Louisiana v. United States, 948 F.3d 317 (5th Cir. 2020) ........................................................................................... 25 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................................................... 15 21 Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) ..................................................................................................... 24 26 Meese v. Keene, 481 U.S. 465 (1987) .......................................................................................................... 18 Morton v. Mancari, 417 U.S. 535 (1974) .......................................................................................................... 30 National Cable & Telecomms. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002) .......................................................................................................... 30 National Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) .......................................................................................................... 35 Navy Chaplaincy, In re, 534 F.3d 756 (D.C. Cir. 2008) ......................................................................................... 17 iv Case: 19-51144 Document: 00515337823 Page: 7 Date Filed: 03/09/2020 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) ...................................................................... 18 Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005) ............................................................................................. 31 Peaches Entm’t Corp. v. Entertainment Repertoire Assocs., Inc., 62 F.3d 690 (5th Cir. 1995)......................................................................................... 14 15 Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) .................................................................................... 19 20 Sierra Club v. Trump, 2019 WL 2715422 (N.D. Cal. June 28, 2019) ............................................................... 27 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...................................................................................................... 15 Trump v. Sierra Club, 140 S. Ct. 1 (2019) .............................................................................................. 2 10 27 38 Veasey v. Abbott, 870 F.3d 387 (5th Cir. 2017) ........................................................................................... 38 Williams v. Parker, 843 F.3d 617 (5th Cir. 2016) ........................................................................................... 22 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ....................................................................................................35 36 37 Wyoming v. Department of Interior, 674 F.3d 1220 (10th Cir. 2012) ....................................................................................... 19 Wyoming v. Oklahoma, 502 U.S. 437 (1992) .................................................................................................... 19, 20 Statutes: Administrative Procedure Act (APA), 5 U.S.C. § 702 .................................................................................................................... 24 v Case: 19-51144 Document: 00515337823 Page: 8 Date Filed: 03/09/2020 Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 740, 128 Stat. 2130, 2390 (2014) ............................................ 32 Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 743, 128 Stat. 5, 243 (2014) .................................................. 25 32 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. J, § 131, 132 Stat. 805 ............................................................ 7 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 (2019).......................................... 4 5 25 28 29 32 33 34 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, div. C, tit. I, § 102(a), 110 Stat. 3009 (1996) (codified at 8 U.S.C. § 1103 note) ..................................................................................... 4 Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2019, Pub. L. No. 115-244, div. C, 132 Stat. 2897, 2946 (2018) ........................ 34 National Emergencies Act, 50 U.S.C. § 1601.................................................................................................................. 6 10 U.S.C. § 284................................................................................................................... 5 31 10 U.S.C. § 284(a) ................................................................................................................... 5 10 U.S.C. § 284(b)(7) .............................................................................................................. 5 10 U.S.C. § 2802(a) ................................................................................................................. 7 10 U.S.C. § 2808 .................................................................................................... 1 3 5 30-31 10 U.S.C. § 2808(a) ................................................................................................................. 6 28 U.S.C. § 1291 ..................................................................................................................... 3 28 U.S.C. § 1331 ..................................................................................................................... 3 31 U.S.C. § 1112 ................................................................................................................... 33 vi Case: 19-51144 Document: 00515337823 Page: 9 Date Filed: 03/09/2020 Legislative Materials: Senate Appropriations Hearing on the DHS FY 2018 Budget, 2017 WL 2311065 (May 25, 2017) .................................................................................... 4 H.R. Rep. No 103-200 (1993) .......................................................................................... 5 31 H.R. Rep. No 116-9 (2019) ................................................................................................. 34 Other Authorities: 84 Fed. Reg. 4949 (Feb. 15, 2019) ........................................................................................ 6 Order, Sierra Club v. Trump, No. 19-cv-00872 (N.D. Cal. Dec. 11, 2019) ...................... 38 Order, Sierra Club v. Trump, No. 19-17501 (9th Cir. Dec. 30, 2019)............................... 38 U.S. Customs and Border Prot., DHS, Budget Overview, Fiscal Year 2019 Congressional Justification, https://go.usa.gov/xd7Hj (last visited Mar. 9, 2020) ......... 33 U.S. Gov’t Accountability Off.: GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process (2005) ............. 33 GAO-17-797SP, Principles of Federal Appropriations Law (4th ed. rev. 2017), http://go.usa.gov/xd7eg ............................................................................................ 31 vii Case: 19-51144 Document: 00515337823 Page: 10 Date Filed: 03/09/2020 INTRODUCTION 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 Section 2808. Instead, it decided that a different statute, appropriating funds for a different agency, implicitly prohibited DoD from relying on its own statutory authority. A motions panel of this Court stayed the district court’s order pending appeal, concluding that, “among other reasons,” a stay was warranted because of “the substantial likelihood that [plaintiffs] lack Article III standing.” ROA.2263. That conclusion was correct, and this Court should now reverse. First, plaintiffs lack a right to sue, because they do not have Article III standing and they also fall outside the zone of interests of the asserted statutory limitations they seek to enforce. Plaintiff El Paso County asserts reputational and indirect economic injuries as a result of defendants’ Section 2808 construction, but no Section 2808 construction is occurring anywhere near El Paso County, and a general decline in tax revenue as an indirect result of government action does not constitute an Article III injury-in-fact. The organizational injuries asserted by plaintiff Border Network For Human Rights fare no better, as its alleged expenditures in response to defendants’ conduct are entirely voluntary and, like El Paso’s injuries, are unrelated to any specific Section 2808 construction project enjoined by the district court. In all events, Case: 19-51144 Document: 00515337823 Page: 11 Date Filed: 03/09/2020 plaintiffs are not proper parties to enforce the asserted statutory limitations they invoke, because they fall outside the zone of interests of those provisions and thus lack a cause of action. See Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.) (staying an injunction against border-barrier construction because the government had made a sufficient showing that the plaintiffs there lacked a cause of action to assert other statutory limitations). Second, even if plaintiffs had an adequate basis to sue, the district court’s decision on the merits rests on a glaring error in interpreting the text of federal appropriations law. The Consolidated Appropriations Act of 2019 (CAA) appropriated funds to specific accounts within the budget of the Department of Homeland Security (DHS), and specified in some circumstances how DHS may spend that money. DHS is fully complying with the CAA’s limitations, and the district court did not suggest otherwise. Rather, the district court reasoned that the CAA’s appropriation to DHS for border-barrier construction overrides DoD’s statutory authority to build border barriers using its own separately appropriated funds. But Congress’s mere appropriation of a lump sum to DHS does nothing of the sort. Finally, at a minimum, the district court abused its discretion in granting a permanent injunction. Plaintiffs’ asserted harms are insubstantial and unconnected to the Section 2808 construction the district court enjoined and reflect only policy disagreements with border-barrier construction generally, while the government has a 2 Case: 19-51144 Document: 00515337823 Page: 12 Date Filed: 03/09/2020 compelling interest in supporting military operations, as well as drug interdiction and border security. STATEMENT OF JURISDICTION The district court’s jurisdiction over plaintiffs’ claim that defendants lack statutory authority to conduct the construction at issue rests on 28 U.S.C. § 1331. The district court granted summary judgment in favor of plaintiffs on October 11, 2019, ROA.2128-29, and entered a permanent injunction on December 10, 2019, ROA.2216. Defendants filed a timely notice of appeal on December 16, 2019. ROA.2217. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether plaintiffs satisfy Article III standing and zone-of-interests requirements to sue to enjoin DoD from completing border-barrier construction under 10 U.S.C. § 2808. 2. Whether Congress’s appropriation to DHS for border-barrier construction impliedly prohibited DoD from using its own appropriated funds to complete borderbarrier construction pursuant to its own statutory authorities. 3. Whether the district court abused its discretion in granting equitable relief. STATEMENT OF THE CASE I. Statutory and Factual Background This case concerns distinct statutory schemes governing DoD and DHS. The district court enjoined DoD’s military construction operations, holding that a DHS 3 Case: 19-51144 Document: 00515337823 Page: 13 Date Filed: 03/09/2020 appropriations statute prohibits DoD from relying on DoD’s own appropriated funds and its own statutory authority. Each of the two statutory schemes is set forth below. A. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the Secretary of Homeland Security to “take such actions as may be necessary to install additional physical barriers and roads . . . in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208, div. C, tit. I, § 102(a), 110 Stat. 3009 (1996) (codified at 8 U.S.C. § 1103 note). As of 2017, DHS has installed approximately 650 miles of barriers along the southern border pursuant to this statutory authority. See Senate Appropriations Hearing on the DHS FY 2018 Budget, 2017 WL 2311065 (May 25, 2017) (testimony of Secretary John Kelly). In the Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019) (CAA), Congress appropriated funds to DHS, among several other agencies, for the 2019 fiscal year. As part of that Act, Congress appropriated a lump sum to DHS’s “U.S. Customs and Border Protection--Procurement, Construction, and Improvements” account. 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. In a separate section of the CAA, Congress placed some explicit limitations on the construction of border barriers generally, stating that “[n]one of the funds made available by this Act or prior 4 Case: 19-51144 Document: 00515337823 Page: 14 Date Filed: 03/09/2020 Acts are available for the construction of pedestrian fencing” within five specified areas of the border, such as “the National Butterfly Center.” Id., § 231, 133 Stat. at 28. But the CAA contains no express limitations on the authority of other agencies to build border barriers in other locations using other appropriations and statutory authorities. B. Congress has also long authorized DoD to provide a wide range of support to DHS at the southern border. Since the early 1990s, military personnel have helped to build and reinforce border barriers. See H.R. Rep. No. 103-200, at 330-31 (1993) (commending DoD for its role in construction of the San Diego primary fence); Gringo Pass, Inc. v. Kiewitt Sw. Co., No. 09-cv-251, 2012 WL 12905166, at *1 (D. Ariz. Jan. 11, 2012) (discussing the U.S. Army Corps of Engineers’ role in facilitating “construction of the international border fence”). DoD’s statutory authorities, as relevant here, include 10 U.S.C. § 284 and § 2808. First, Section 284 authorizes DoD to “provide support for the counterdrug activities . . . of any other department or agency,” if “such support is requested.” 10 U.S.C. § 284(a). Such support includes the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Id. § 284(a), (b)(7). In fiscal year 2019, DHS requested DoD’s assistance pursuant to Section 284 in blocking “11 specific drugsmuggling corridors along portions of the southern border,” ROA.1493, and DoD approved of six projects, located in Arizona, California, and New Mexico, see, e.g., 5 Case: 19-51144 Document: 00515337823 Page: 15 Date Filed: 03/09/2020 ROA.1493; ROA.1511; ROA.1758. DHS had identified those projects as among its highest priorities, based on the volume of drug smuggling that occurs between ports of entry in those parts of the border. See, e.g., ROA.1500; ROA.1506. Second, Section 2808 authorizes the Secretary of Defense, “[i]n the event of a declaration of war or the declaration by the President of a national emergency,” to “undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). “Such projects may be undertaken” with unobligated funds “that have been appropriated for military construction,” a component of DoD’s budget. Id. On February 15, 2019, the President issued a proclamation pursuant to the National Emergencies Act, 50 U.S.C. § 1601, declaring that a national emergency exists at the southern border and making available certain statutory authorities, including Section 2808, to be used at the discretion of the Secretary of Defense in accordance with the statutes’ terms. 84 Fed. Reg. 4949, 4949 (Feb. 15, 2019). At the time plaintiffs filed this suit and moved for summary judgment, the Secretary of Defense had not yet exercised his discretion to approve any projects under Section 2808. On September 3, 2019, the Secretary, relying on analysis from the Chairman of the Joint Chiefs of Staff, among others, decided to undertake eleven border-barrier projects under Section 2808. ROA.1788-89. No Section 2808 project was authorized within El Paso County, Texas. The closest project to the County 6 Case: 19-51144 Document: 00515337823 Page: 16 Date Filed: 03/09/2020 begins roughly 100 miles away from downtown El Paso, “approximately 20 miles west of the Columbus[, New Mexico]” point of entry. ROA.1790. In order to fund the Section 2808 projects, the Secretary of Defense authorized the Department of the Army to expend up to $3.6 billion in appropriated but unobligated military construction funds, pursuant to Section 2808’s terms. ROA.1789. Approximately $20 million of those funds will come from deferring a proposed defense access roads construction project at Fort Bliss, an Army installation in El Paso County. ROA.1806. Funds for that proposed project were expected to come from a discretionary lump-sum appropriation to DoD for defense access road construction. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. J, § 131, 132 Stat. 805. Congress to date has not authorized the Fort Bliss project, as required before that project could begin. See 10 U.S.C. § 2802(a). II. Procedural History A. 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.” ROA.931-32. Plaintiffs moved for summary judgment, or, in the alternative, for a preliminary injunction, asserting that defendants’ use of funds to build border barriers was unlawful because Congress in the CAA had appropriated only $1.375 billion to DHS for border construction, which plaintiffs contended 7 Case: 19-51144 Document: 00515337823 Page: 17 Date Filed: 03/09/2020 foreclosed DoD from using its own appropriated funds to complete border-barrier construction pursuant to its statutory authorities. ROA.331-32. B. The district court granted summary judgment in favor of plaintiffs. The court first addressed plaintiffs’ right to sue. The court reasoned that El Paso had demonstrated an Article III injury because it is the “object” of the defendants’ actions to “build[] a border wall along the southern border,” ROA.210506; it has a “reputational” injury from its “unwanted association” with “the construction of a border wall through executive action,” ROA.2106-09; 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 military construction at Fort Bliss, ROA.2111-12. The district court concluded that BNHR had standing as an organization because it had “divert[ed] resources” away from its mission in order to “counsel[] community members who are fearful” and “oppos[e]” defendants’ construction. ROA.2117. The district court also held that the zone-of-interests requirement to assert a cause of action to enforce a statutory limitation did not apply to foreclose plaintiffs’ suit. ROA.2120-21. On the merits, the district court held that because Congress had “specifically appropriate[d]” funds to DHS for border-barrier construction in the CAA, and because “a more specific statute will be given precedence over a more general one,” other agencies such as DoD could not use their own statutory authority and 8 Case: 19-51144 Document: 00515337823 Page: 18 Date Filed: 03/09/2020 appropriations, which are for more “general purposes,” to construct barriers at the southern border. ROA.2121-22. The court thus held that DoD could not use its funds under Section 284 or Section 2808 for border-barrier construction. 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. ROA.2122. The district court also invoked Section 739 of a component of the CAA, which states that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . 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.” ROA.2125-26. Invoking what it saw as the “ordinary meaning” of the statutory term “project,” 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 under Section 284 or Section 2808 to complete border barrier construction was “increas[ing] funding” for a “project,” in violation of Section 739. ROA.2126-27. C. Two months after granting summary judgment, the district court entered a permanent injunction prohibiting the government from using military construction funds under Section 2808 for any border barrier construction (and entered a 9 Case: 19-51144 Document: 00515337823 Page: 19 Date Filed: 03/09/2020 declaratory judgment that the President’s declaration of national emergency was invalid to the extent it authorized such construction). ROA.2215.1 The district court concluded that plaintiffs had suffered irreparable injuries warranting injunctive relief because “El Paso County and BNHR are central stakeholders” and the court had already found that El Paso would suffer reputational and economic injury, and BNHR would suffer an organizational injury. ROA.220609. In weighing the balance of hardships and the public interest, the district court held that construction under Section 2808 should be enjoined. Although it acknowledged the government’s interest in border security and “prevent[ing] illegal drugs from entering the country,” ROA.2211-13, it suggested without explanation 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. ROA.2212-13. The district court declined to enjoin DoD from using its own appropriated funds to engage in construction under Section 284. ROA.2210. The district court cited Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.), in which the Supreme Court stayed pending appeal a district court injunction that prohibited DoD from The district court correctly declined to enjoin the President himself or to declare the Proclamation invalid more broadly. ROA.2201-02. 10 1 Case: 19-51144 Document: 00515337823 Page: 20 Date Filed: 03/09/2020 constructing border barriers under Section 284 with funds transferred between DoD’s internal budget accounts. ROA.2210. D. On January 8, 2020, a motions panel of this Court granted defendants’ motion for stay of the district court’s order pending appeal, explaining that “among [the] reasons” a stay was warranted was “the substantial likelihood that [plaintiffs] lack Article III standing.” ROA.2263. Judge Higginson dissented, stating that although he “agree[d] . . . that this matter presents ‘a substantial case on the merits,’” he was “unable to agree, without focused panel deliberation and discussion,” that the government had “presently” shown entitlement to a stay. ROA.2263-64 (Higginson, J., dissenting). SUMMARY OF ARGUMENT This Court should reverse the district court’s extraordinary injunction and declaratory judgment. As a threshold matter, plaintiffs lack a right to sue, because they cannot satisfy either the Constitution’s jurisdictional requirement to demonstrate Article III standing or the zone-of-interests requirement to enforce an alleged statutory limitation. On the merits, plaintiffs and the district court are also fundamentally wrong about the meaning of the appropriation statute at issue here. And at a minimum, the balance of the equities does not support an injunction in these circumstances. I. Plaintiffs lack Article III standing. Plaintiff El Paso claims to be suffering reputational injuries from DoD’s border-barrier construction under Section 2808, but 11 Case: 19-51144 Document: 00515337823 Page: 21 Date Filed: 03/09/2020 no Section 2808 construction is occurring anywhere near El Paso County. The closest Section 2808 construction is nearly 100 miles away, in a different state. El Paso cannot claim a reputational injury from border-barrier construction occurring elsewhere, and the district court’s injunction against Section 2808 construction does not redress El Paso’s claimed reputational injury based on a policy disagreement with the President’s proclamation. El Paso also asserts that it is suffering indirect economic harm, but that harm is even further removed from any actual Section 2808 construction, and the Supreme Court and other courts have long made clear that allegations that federal government action has caused a general decline in tax revenue do not suffice to show an Article III injury. That is all El Paso alleges here, and even those purported injuries are not supported by the record. Plaintiff BNHR likewise lacks standing. BNHR contends it has suffered an organizational injury because it has spent its organizational resources opposing defendants’ border-barrier construction. But BNHR provides nothing to suggest that defendants’ border-barrier construction has injured its organizational mission and thereby caused a drain on its resources. Accordingly, BNHR’s alleged expenditures in responding to the construction are entirely voluntary, and such self-inflicted injuries do not suffice to establish a cognizable injury. Plaintiffs also lack a right to sue because they cannot satisfy the zone-ofinterests requirement. Plaintiffs bring an Administrative Procedure Act (APA) claim against defendants, and must demonstrate that they are within the zone of interests of 12 Case: 19-51144 Document: 00515337823 Page: 22 Date Filed: 03/09/2020 the CAA provisions they seek to enforce. Nothing in those appropriations provisions suggest that Congress intended to allow suit by parties alleging the attenuated interests that plaintiffs assert here. Indeed, the district court did not find that plaintiffs satisfied the zone-of-interests requirement; rather, the court held that the zone-ofinterests requirement is inapplicable when a plaintiff brings an implied cause of action in equity to enforce a statutory provision. But that ignores the cause of action that plaintiffs actually brought—an APA claim, to which the zone-of-interest requirement unquestionably applies—and in any event, the zone-of-interests requirement also applies to implied equitable claims. II. Even if plaintiffs had an adequate basis to sue, the district court plainly erred on the merits in interpreting the appropriations statute at issue. Congress in the CAA appropriated a lump sum of money to an appropriations account within the budget of DHS, and specified how DHS was to use the money in that account for border-barrier construction. The district court interpreted that appropriation to DHS as prohibiting all other agencies from using their own funds and statutory authorities for border-barrier construction, but the CAA says nothing of the sort. The district court invoked the specific-controls-the-general canon, and held that Congress’s more “specific” appropriation to DHS for border-barrier construction precluded DoD from relying on its more “general” statutory authorities for border-barrier construction. But that statutory canon has no application where statutes are not in conflict with one another, and there is no conflict between Congress’s appropriation 13 Case: 19-51144 Document: 00515337823 Page: 23 Date Filed: 03/09/2020 to DHS for border-barrier construction pursuant to DHS’s statutory authority, and Congress’s separate grant of authority for DoD to use its own appropriations to complete border-barrier construction. Indeed, Congress explicitly contemplated that DoD would use its construction authorities to assist other agencies, such as DHS, at the border. III. Finally, and at a minimum, the district court abused its discretion in granting a permanent injunction prohibiting defendants from using funds to engage in any construction under Section 2808 nationwide. The government’s compelling interests in border security and drug interdiction far outweigh plaintiffs’ vague and attenuated reputational, indirect economic, and organizational injuries. Indeed, in granting a stay, a motions panel of this Court necessarily balanced the harms and considered the public interest, and determined that defendants’ construction should be permitted to continue pending appeal. Just as the equities warranted a stay pending appeal, the lopsided balance of harms demonstrate that the district court erred in granting an injunction in the first place. STANDARD OF REVIEW This Court “review[s] the trial court’s granting or denial of permanent injunction for abuse of discretion.” Peaches Entm’t Corp. v. Entertainment Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995). “The district court abuses its discretion if it (1) relies on clearly erroneous factual findings,” (2) “relies on erroneous 14 Case: 19-51144 Document: 00515337823 Page: 24 Date Filed: 03/09/2020 conclusions of law,” or (3) “misapplies the factual or legal conclusions when fashioning its injunctive relief.” Id. ARGUMENT I. Plaintiffs Have No Right to Sue 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 proper judicial role.” Spokeo, Inc. 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. 1. El Paso’s Reputation Is Not Injured By Section 2808 Construction, Which Is Not Even Occurring In The County The district court concluded that El Paso was “harmed by [its] unwanted association” with “the construction of a border wall through executive action,” and thus had an adequate reputational injury. ROA.2106-09. That holding is flawed at every level. At the outset, the government has not even authorized any Section 2808 construction in or near El Paso County. The closest project authorized under Section 15 Case: 19-51144 Document: 00515337823 Page: 25 Date Filed: 03/09/2020 2808 is nearly 100 miles away from downtown El Paso, in a different state. ROA.1790. The other Section 2808 projects are even farther from El Paso. Id. Any reputational injury El Paso has suffered is thus not fairly traceable to Section 2808 construction. And the relief awarded by the district court—a nationwide permanent injunction, based solely on an alleged budgetary constraint prohibiting the use of funds for all Section 2808 military construction of border barriers—does not redress the reputational harms El Paso alleges. Indeed, Section 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 are located in or near El Paso. The district court concluded that El Paso has standing because it is the “object of the border wall construction.” ROA.2105. But that conclusion lacks any support in the record. Again, none of the Section 2808 projects that the district court enjoined are even in the same state as El Paso. El Paso’s declarants likewise did not link a claimed reputational injury to any Section 2808 project. ROA.916-17; ROA.922-25. Those declarations were filed before the Secretary of Defense had even decided to undertake any specific Section 2808 project. Compare ROA.919 and ROA.928, with ROA.1788. The declarants discuss construction “along the border highway in Dona Ana County, New Mexico, which is El Paso County’s neighboring county.” ROA.918; see also ROA.926. But that construction is not being undertaken pursuant to Section 2808, see ROA.1505 (describing projects under Section 284), and 16 Case: 19-51144 Document: 00515337823 Page: 26 Date Filed: 03/09/2020 is thus not subject to the district court’s injunction. And even that identified construction is not occurring in El Paso County. The harms asserted here by El Paso would not be sufficient to establish standing even if there were border construction occurring in the County. El Paso’s declarants assert reputational injuries resulting from “falsehoods perpetuated by the President,” ROA.925, but that purported injury is not connected to any Section 2808 project, ROA.923-25, 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 corresponding action” conferring a concrete injury); accord In re Navy Chaplaincy, 534 F.3d 756, 764-65 (D.C. Cir. 2008) (Kavanaugh, J.) (explaining that it would “eviscerate well-settled standing limitations” to allow any plaintiff to sue over a “governmental message” with which he or she disagreed when there is no corresponding government action directed at the plaintiff). And the district court’s injunction does not correct any alleged falsehoods by the President or otherwise rehabilitate El Paso’s purportedly injured reputation; it merely prohibits certain border-barrier construction under Section 2808 (far afield from El Paso) based on an alleged budgetary constraint that has nothing to do with the conditions in El Paso. The cases relied upon by the district court (ROA.2107-09) confirm that El Paso lacks an Article III injury. Those cases demonstrate that reputational harm confers 17 Case: 19-51144 Document: 00515337823 Page: 27 Date Filed: 03/09/2020 standing only when that harm both directly stems from the specific action being challenged, and would likely be redressed by the requested relief. See, e.g., 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 he demonstrated that it would injure his reputation if he were to screen the film while it was so categorized); Foretich v. United States, 351 F.3d 1198, 1214 (D.C. Cir. 2003) (plaintiff had standing to challenge statute specifically directed at him that “brand[ed] him a child abuser and unfit parent”); NCAA v. Governor of New Jersey, 730 F.3d 208, 220-21 (3d Cir. 2013) (sports leagues had standing to challenge statute licensing gambling on the leagues’ games 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 Section 2808 projects at issue do not involve El Paso at all, and enjoining the projects based on alleged budgetary constraints would not redress any asserted harms to El Paso’s reputation. 2. El Paso’s Alleged Indirect Economic Injuries Are Neither Legally Cognizable Nor Factually Established The district court additionally held (ROA.2111-12) that El Paso has standing based on possible reductions to the county’s tax revenues. But this asserted injury is even further removed from any Section 2808 construction because it derives from speculation about how third parties will react to El Paso’s asserted reputational harms, which are themselves insufficient, as discussed supra. See ROA.917-19 (discussing fear 18 Case: 19-51144 Document: 00515337823 Page: 28 Date Filed: 03/09/2020 of tourists being “put off” by alleged “falsehoods” of the President and “impending wall construction in New Mexico”); contra 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.”). The district court’s tax-loss theory of standing is also contrary to binding precedent. Standing cannot be based on allegations that the federal government’s actions have injured a locality’s “economy and thereby caused a decline in general tax revenues.” Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992). “[V]irtually all federal policies” have “unavoidable economic repercussions” on state and local tax revenues. Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976). In order to have an Article III injury, as opposed to a mere “generalized grievance about the conduct of [the federal] government,” id., a locality must show that federal government action has caused it “a direct injury in the form of a loss of specific tax revenues,” Wyoming, 502 U.S. at 448 (emphasis added). Here, El Paso merely speculates that it will lose money due to reduced tourism and business development as an indirect result of the federal government’s borderbarrier construction elsewhere. E.g., ROA.917-18; ROA.926-27. That is insufficient under Wyoming, 502 U.S. at 448; see Wyoming v. Department of Interior, 674 F.3d 1220, 1234-35 (10th Cir. 2012) (relying on Wyoming v. Oklahoma to hold that a State lacked Article III injury from the indirect loss of tax revenue caused by the federal government’s actions with respect to national parks in the State); Iowa ex rel. Miller v. 19 Case: 19-51144 Document: 00515337823 Page: 29 Date Filed: 03/09/2020 Block, 771 F.2d 347, 353-54 (8th Cir. 1985) (State lacked Article III injury from general decline in tax revenue as a result of federal government’s implementation of disaster relief programs); Kleppe, 533 F.2d at 672 (D.C. Cir. 1976) (same). The district court alternatively concluded that El Paso had sustained a “direct” injury, as required by Wyoming, 502 U.S. at 448, because DoD deferred a $20 million construction project at Fort Bliss—an Army installation in El Paso County—to fund Section 2808 projects. ROA.2112. But El Paso itself would receive no funds as part of that federal construction project for access roads at a federal military base. Any reduction in El Paso’s tax revenues that might result is therefore indirect by definition. Moreover, the record here fails to support even the indirect injuries asserted by El Paso. El Paso’s declarations contain only speculative and conclusory assertions that defendants’ construction will affect tourism and development in El Paso, e.g., ROA.917-18, ROA.926, and provide no specific facts to demonstrate that the deferral of the road project at Fort Bliss, in particular, will cause any harm to El Paso’s economy. El Paso submitted its declarations before the Secretary had made any decision approving specific Section 2808 projects or identifying the construction projects to defer. Compare ROA.913, with ROA.1779. Those declarations fail to link any asserted (and necessarily speculative) claims of injury to any Section 2808 military construction projects. El Paso’s unsupported assumptions fall far short of the evidence needed to demonstrate its standing at the summary-judgment stage. 20 Case: 19-51144 Document: 00515337823 Page: 30 Date Filed: 03/09/2020 Defenders of Wildlife, 504 U.S. at 561 (standing must be established “with the manner and degree of evidence required at the successive stages of the litigation”). Finally, even assuming El Paso could establish an Article III injury from its indirect loss of tax revenue from the use of funds from a proposed road project at Fort Bliss, that injury would at most provide El Paso with standing to enjoin the use of that $20 million on Section 2808 construction. It would not provide El Paso with standing to prohibit the government from using any other funds to complete Section 2808 construction, and it would not authorize a nationwide injunction against Section 2808 military construction generally, the relief awarded by the district court here. “[S]tanding is not dispensed in gross. A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1926, 1934 (2018) (quotation marks omitted); see infra pp.38-39. 3. BNHR’s Alleged Organizational Injuries Are SelfInflicted Expenditures 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. ROA.2117-18 (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 21 Case: 19-51144 Document: 00515337823 Page: 31 Date Filed: 03/09/2020 to impart standing on the organization.” Association for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994) (ARC). The organization must show that the action it is challenging—here, the Section 2808 construction projects—has caused a “concrete and demonstrable injury” to the organization, i.e., has directly impaired the organization’s mission and thereby caused a drain on its resources to counteract that injury. Association of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 360-61, 362 & n.7 (5th Cir. 1999) (ACORN); see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). An organization lacks standing where its costs are not fairly traceable to an injury it suffers from the specific conduct it is challenging, but rather are self-inflicted expenditures that the organization has chosen to incur in response to the challenged conduct. Williams v. Parker, 843 F.3d 617, 622 (5th Cir. 2016); ACORN, 178 F.3d at 359-61; 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.” ROA.935-36. 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 voluntary choice to undertake advocacy work does not establish standing. See id. (organization lacked standing where it spent funds “organizing [a] signature drive” to repeal law that it opposed). If that were sufficient, “any sincere plaintiff could bootstrap standing by 22 Case: 19-51144 Document: 00515337823 Page: 32 Date Filed: 03/09/2020 expending its resources in response to actions” with which it disagrees. ARC, 19 F.3d at 244. That conclusion is “at odds with [Defenders of Wildlife]’s definition of injury in fact.” Id. BNHR has not established that defendants’ construction under Section 2808, in particular, has required it to divert resources. Indeed, BNHR’s declaration does not mention any specific Section 2808 project. BNHR instead claims that it has been forced to expend resources for a host of reasons unrelated to Section 2808 construction, such as retaining local attorneys to “document Border Patrol’s and ICE’s violations of constitutional rights.” ROA.936; but see ACORN, 178 F.3d at 35961 (organization lacked standing where it provided no evidence to link its costs “to any of the conduct by [the defendant] that [it] claims in its complaint is illegal”). BNHR’s declaration also states that construction in New Mexico will cause its members to deal with “noise,” “[t]raffic slowdowns,” and “debris.” ROA.940-41. These concerns, however, are not tied to any identified Section 2808 construction project, and BNHR fails to explain how its members’ concerns over noise and traffic frustrate BNHR’s organizational mission of promoting immigration reform, or requires it to spend additional organizational resources. The district court emphasized (ROA.2115) 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 ROA.939-40. But 23 Case: 19-51144 Document: 00515337823 Page: 33 Date Filed: 03/09/2020 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 the entirely unrelated assertion that “law enforcement is no longer supportive.” ROA.940. Any such policy disagreement cannot support standing to seek an injunction of Section 2808 military construction projects. B. Plaintiffs Cannot Satisfy the Zone-of-Interests Requirement Even if plaintiffs could satisfy Article III’s minimum standing requirements, these particular plaintiffs still would not be proper parties to enforce the CAA provisions that they invoke. Plaintiffs bring their claim under the Administrative Procedure Act (APA), 5 U.S.C. § 702. See ROA.279-80. In order to bring such a claim, a “plaintiff must establish that the injury he complains of . . . falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883 (1990). Even under the “generous review” provisions of the APA, a plaintiff whose interests are “so marginally related to or inconsistent with the purposes implicit in the [allegedly violated] statute” cannot bring suit to enforce that statute because “it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 395, 399 (1987). Plaintiffs cannot satisfy this standard. Plaintiffs seek to enforce alleged limitations implicit in the CAA’s appropriation of $1.375 billion to DHS for border24 Case: 19-51144 Document: 00515337823 Page: 34 Date Filed: 03/09/2020 barrier construction in the Rio Grande Valley Sector, as well as Section 739 of a component of the CAA, which states that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . 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.” See Pub. L. No. 116-6, div. D, § 739, 133 Stat. at 197. But nothing in Congress’s appropriation of funds to DHS for DHS to carry out its statutory mission suggests that Congress intended to allow suit by plaintiffs who allege reputational, economic, and organizational harms as an indirect result of how another agency has used its own separately appropriated funds and statutory authorities. And Section 739 is intended to regulate the back-and-forth relationship between agencies and Congress regarding federal spending. That provision’s boilerplate language, which has been included in appropriations statutes since 2014, see e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 743, 128 Stat. 5, 243 (2014), in no way suggests that Congress intended to allow suits to enforce the attenuated interests these particular plaintiffs assert here. See Louisiana v. United States, 948 F.3d 317 (5th Cir. 2020) (concluding State fell outside zone-of-interests of waterway provision that “was motivated by the need for commerce on a national scale,” not to protect the “interests of the landowners surrounding the Waterway”). Indeed, the district court did not find that plaintiffs could satisfy the zone-of-interests requirement. 25 Case: 19-51144 Document: 00515337823 Page: 35 Date Filed: 03/09/2020 Rather, the district court held that “the zone-of-interests test is inapposite” “when a plaintiff seeks equitable relief against a defendant for exceeding its statutory authority.” ROA.2120-21 n.1. That is wrong twice over. As discussed, plaintiffs here brought an APA claim against defendants, ROA.279-80, and it is beyond dispute that the zone-of-interests requirement applies to such claims, see National Wildlife Fed’n, 497 U.S. at 883. And regardless, even had plaintiffs purported to bring an implied equitable cause of action outside of the APA, the zone-of-interests requirement would still apply. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-30 (2014) (explaining that the zone-of-interests requirement is one “of general application,” reflecting intended limits on the scope of all causes of action authorized by Congress, and it “applies unless it is expressly negated” by Congress (quoting Bennett v. Spear, 520 U.S. 154, 163 (1997)); see also Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (equitable powers are subject to “express and implied statutory limitations”); Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 322 (1999) (equity jurisdiction is limited by “traditional equitable relief”). If anything, the Supreme Court has suggested that a heightened zone-of-interests requirement might apply to such a claim. See Clarke, 479 U.S. at 400 & n.16 (explaining that, in such circumstances, a plaintiff may be required to prove that the statutory provision sought to be enforced is intended for plaintiff’s “especial benefit”); Hernandez v. Mesa, 140 S. Ct. 335, 747 (2020) (“It would be ‘anomalous to impute . . . a judicially implied cause of action beyond the bounds [Congress has] delineated for [a] 26 Case: 19-51144 Document: 00515337823 Page: 36 Date Filed: 03/09/2020 comparable express caus[e] of action’” (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975)). Tellingly, the only authority cited by the district court was Sierra Club v. Trump, No. 19-cv-892, 2019 WL 2715422 (N.D. Cal. June 28, 2019), a decision that has been stayed by the Supreme Court, in part because of its flawed zone-of-interests analysis. Trump v. Sierra Club, 140 S. Ct. at 1 (noting that, “[a]mong the reasons” a stay was warranted was that the government had “made a sufficient showing . . . that the plaintiffs have no cause of action”). In sum, plaintiffs fall outside of the zone-ofinterests of the provisions they seek to enforce and, for this additional reason, the district court’s orders must be reversed wholly apart from the merits. II. 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 a right to sue, the district court erred on the merits because the CAA does not limit the construction that the district court enjoined. The court concluded that “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. ROA.2124. But that is not what the statute says, and Congress’s mere appropriation of funds to an account within DHS’s budget certainly does not impliedly override the existing statutory authorities of other agencies to complete 27 Case: 19-51144 Document: 00515337823 Page: 37 Date Filed: 03/09/2020 border-barrier construction using their own appropriated funds. Plaintiffs and the district court are simply wrong about the meaning of the statute at issue here. A. In appropriating funds, Congress specifies appropriations to particular budget accounts within an agency. See, e.g., CAA, Pub. L. No. 116-6, div. A, tit. II, 133 Stat. at 18-19. For example, DHS’s appropriations are divided into budget accounts such as “U.S. Customs and Border Protection--Operations and Support,” “U.S. Customs and Border Protection--Procurement, Construction, and Improvements,” and “Transportation Security Administration--Operations and Support,” among several others. Id. Congress may provide a lump sum of money to a particular account without any specifications or limitations for how that money will be used by the agency; or Congress might further specify how the agency is to spend funds appropriated to a particular account. See, e.g., id., 133 Stat. at 18-19; id., 133 Stat. at 101-06 (providing funds to appropriations accounts within the Department of Justice accounts and specifying in some circumstances how those appropriated funds are to be used). Congress in the CAA appropriated funds to DHS (among several other agencies) for the 2019 fiscal year. As relevant here, Congress appropriated a lump sum of money to DHS’s “U.S. Customs and Border Patrol--Procurement, Construction, and Improvements” account. CAA, 133 Stat. at 18 (appropriating over $2 billion). And Congress specified that, “[o]f the total amount available under” that 28 Case: 19-51144 Document: 00515337823 Page: 38 Date Filed: 03/09/2020 specific account, $1.375 billion “is for the construction of primary fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.” Id., 133 Stat. at 28. The district court concluded that, in appropriating $1.375 billion to DHS for border-barrier construction in the Rio Grande Valley Sector, the “plain text of the CAA” prohibits other agencies from relying on other statutory authorities and appropriations for border-barrier construction. ROA.2124. But the statute says nothing of the sort. As set forth above, Congress appropriated in the CAA a particular amount of money to an account within DHS’s budget, and specified how DHS is to spend the funds within that account, as Congress often does when appropriating funds to an agency. The CAA nowhere says that the appropriation to DHS prohibits other agencies from relying on their own separate statutory authority, and their own appropriated funds, to construct border barriers. Indeed, 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, 133 Stat. at 28. The government has not constructed any border barriers in the specified areas, under any statutory authority (including Section 2808 and Section 284). But nothing in the CAA precludes DoD from invoking its own 29 Case: 19-51144 Document: 00515337823 Page: 39 Date Filed: 03/09/2020 statutory authority, and using its own funds for border-barrier construction in other areas. The mere appropriation of a lump sum to DHS certainly does not do so. In reaching the contrary conclusion, the district court relied on the interpretive canon that the “specific controls [the] general.” ROA.2121-22. According to the court, Congress’s “specific appropriation” of $1.375 billion to DHS prohibits other agencies from relying on more “general” statutory authorities to construct border barrier. ROA.2122. That reasoning fundamentally misunderstands this canon of interpretation. Although “[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 & Telecomms. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327, 335-36 (2002); Interstate Commerce Comm’n 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, 551 (1974). There is no conflict between Congress’s appropriation to DHS for borderbarrier 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. 30 Case: 19-51144 Document: 00515337823 Page: 40 Date Filed: 03/09/2020 § 2808. And Section 284 explicitly envisions that DoD will use its resources to construct “roads and fences . . . to block drug smuggling corridors across international boundaries” at the request of other agencies, such as DHS. 10 U.S.C. § 284. There is nothing inconsistent about DoD completing authorized projects under its statutory authority with its own appropriations, and DHS completing border-barrier projects under its separate statutory authority with its own separate appropriations. Indeed, military personnel have long assisted in building and reinforcing infrastructure at the southern border. See H.R. Rep. No. 103-200, at 330-31; Gringo Pass, Inc. v. Kiewitt Sw. Co., 2012 WL 12905166, at *1 (D. Ariz. Jan. 11, 2012). The respective statutory authorities are entirely consistent with each other, and the Court should reject plaintiffs’ efforts to manufacture a conflict between the language of federal statutes that would justify invocation of the specific-controls-general canon. For similar reasons, the district court was wrong to rely on Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005); see ROA.2121-22. That case 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. Nevada, 400 F.3d at 16. In such a circumstance, Congress presumptively intends the agency to use the more specific appropriation for that particular item, rather than a more general appropriation. See U.S. Gov’t Accountability Off., GAO-17-797SP, Principles of Federal Appropriations Law 407-08 (4th ed. rev. 2017), http://go.usa.gov/xd7eg (“[I]f an agency has a specific appropriation for a particular item, and also has a general 31 Case: 19-51144 Document: 00515337823 Page: 41 Date Filed: 03/09/2020 appropriation broad enough to cover the same item, . . . [i]t 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. B. The district court’s reliance on Section 739 of the Financial Services and General Government Appropriations Act, 2019 (a component of the CAA), fares no better. ROA.2125-27. 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 (emphasis added). As discussed supra, similar boilerplate language has been included in appropriations statutes since 2014. See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 743, 128 Stat. at 243; Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 740, 128 Stat. 2130, 2390 (2014). There is nothing in that language to suggest that the provision could be read to implicitly repeal the longstanding and specific authority provided in Section 2808 concerning military construction in the event of a national emergency (or Section 284 concerning counter-narcotics support). The district court, relying on what it viewed as the “ordinary meaning” of the term “project,” concluded that defendants’ construction under Section 2808 will 32 Case: 19-51144 Document: 00515337823 Page: 42 Date Filed: 03/09/2020 improperly increase funding for a “project” of a “wall along the southern border.” ROA.2127. But the phrase “program, project, or activity” in an appropriations statute such as the CAA has an established and specific meaning. The GAO has defined “program, project, or activity” as an “element within a budget account.” U.S. Gov’t Accountability Off., GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process 80 (2005); see 31 U.S.C. § 1112 (requiring GAO to publish standard budget terms); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context.” (quotations omitted)). As discussed above, an agency’s total budget is divided into several different appropriations accounts—i.e., DHS’s budget includes its “U.S. Customs and Border Protection--Procurement, Investments, and Improvements” account, or “U.S. Immigration and Nationality Service--Operations and Support.” See CAA, 133 Stat. at 18-19. Under those accounts, an agency may fund numerous programs, projects, and activities. See generally U.S. Customs and Border Prot., DHS, Budget Overview, Fiscal Year 2019, Congressional Justification, https://go.usa.gov/xd7Hj (last visited Mar. 9, 2020); see id. at 338 (describing the “Border Security Assets and Infrastructure” program, projects, and activities within DHS’s U.S. Customs and Border Patrol’s Procurement, Construction, and Improvements account). The CAA, like other appropriations statutes, uses “programs, projects, and activities” in this specific manner: to refer to elements within an agency’s budget 33 Case: 19-51144 Document: 00515337823 Page: 43 Date Filed: 03/09/2020 accounts. See, e.g., CAA, Pub. L. 116-6, div. A, tit. I, § 101, 133 Stat. at 16 (directing DHS Chief Financial Officer to submit to the appropriations committees reports “that include[] total obligations of the Department for that month . . . at the appropriation and program, project, and activity levels”); see also H.R. Rep. No. 116-9, at 503 (2019) (“remind[ing]” DHS, in the Conference Report accompanying the CAA, that DHS should “follow GAO’s definition of ‘program, project, or activity’ as detailed in the GAO’s A Glossary of Terms Used in the Federal Budget Process”). None of the Section 2808 military construction projects that DoD is undertaking increases funding for an element within any budget account that belongs to DHS (or any other agency). DoD is using funds previously appropriated by Congress for DoD military construction projects. See Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2019, Pub. L. No. 115-244, div. C, 132 Stat. 2897, 2946 (2018). The mere fact that appropriations to different agencies can be used for similar purposes does not transform a valid use of one source of appropriated funds into an improper expenditure. III. The District Court Abused Its Discretion in Finding the Balance of Harms and Public Interest Justified an Injunction At a minimum, the district court improperly balanced the equities and the public interest in granting a permanent injunction. “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 Res. Def. Council, 555 U.S. 7, 32 (2008). “In each case, 34 Case: 19-51144 Document: 00515337823 Page: 44 Date Filed: 03/09/2020 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 proposed project at Fort Bliss, as well as BNHR’s organizational harms. But as discussed, those asserted injuries are insufficient even to establish Article III standing. A fortiori, they cannot support a permanent injunction. The closest Section 2808 project to El Paso County is nearly 100 miles away in a different State; the injunction does not redress El Paso’s purported reputational injury regardless; El Paso has no entitlement to the $20 million intended for defense access roads at Fort Bliss; and BNHR’s injuries are self-inflicted and unrelated to Section 2808 in any event. See supra pp. 15-24. 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., ROA.1500, ROA.1504; ROA.1880-83; ROA.1921-27; ROA.1939. 35 Case: 19-51144 Document: 00515337823 Page: 45 Date Filed: 03/09/2020 In authorizing specific construction projects under Section 2808, the Secretary of Defense concluded, based on advice from the Chairman of the Joint Chiefs of Staff and others, that the identified projects were necessary to support the use of the armed forces in connection with the national emergency declared by the President. ROA.1788-89; ROA.1976-77; ROA.1998-2003. The district court’s opinion does nothing to call that judgment into question. Indeed, the court made no conclusion with respect to the lawfulness of Section 2808 construction, other than to hold that DoD could not use its own funds to engage in that construction because Congress had separately appropriated $1.375 billion to DHS. But even if such an implied limitation exists (which it does not), that would not compel the issuance of an injunction. 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 “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 in national defense,” which “plainly outweighed” the harms to 36 Case: 19-51144 Document: 00515337823 Page: 46 Date Filed: 03/09/2020 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. ROA.2191. But it is no answer that defendants have funds to spend on borderbarrier construction under separate statutory authorities that contain different statutory criteria. Here, the Secretary of Defense, following consultation with the Chairman of the Joint Chiefs of Staff, decided to undertake specific military construction projects under Section 2808 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, in accordance with Section 2808’s statutory terms. See, e.g., ROA.1788-89; ROA.1938-49. And courts must “give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Winter, 555 U.S. at 24. The government’s interest in completing construction pursuant to its Section 2808 authority significantly outweighs any of the vague harms asserted by plaintiffs, particularly where Section 2808 construction is not occurring in the vicinity of El Paso, and BNHR has offered nothing to demonstrate that any Section 2808 projects have injured its organizational mission. The motions panel’s grant of a stay pending appeal underscores the conclusion that the equities tilt sharply in the government’s favor. In granting a stay, the motions 37 Case: 19-51144 Document: 00515337823 Page: 47 Date Filed: 03/09/2020 panel necessarily balanced plaintiffs’ harms against the government’s asserted harms and the public interest, see Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017), and concluded that Section 2808 construction should be allowed to continue pending appeal. That is consistent with a similar decision reached by the Supreme Court in Trump v. Sierra Club, 140 S. Ct. at 1, in which the Supreme Court stayed pending appeal an injunction prohibiting DoD from completing border-barrier construction under Section 284, even in the face of arguments that DoD’s construction would be nearly impossible to undo. See 140 S. Ct. at 1-2 (Breyer, J., concurring in part and dissenting in part); see also Order, Sierra Club v. Trump, No. 19-cv-00872, at 45 (N.D. Cal. Dec. 11, 2019) (staying injunction against Section 2808 construction pending appeal in light of Supreme Court’s stay in Sierra Club); Order, Sierra Club v. Trump, No. 19-17501 (9th Cir. Dec. 30, 2019) (declining to lift injunction on Section 2808 construction pending appeal). For the same reasons the balance of equities justify a stay pending appeal, those lopsided equities demonstrate an injunction never should have issued in the first place. At a minimum, the district court’s injunction should be reversed to the extent it enjoins DoD from using funds other than the $20 million from the proposed Fort Bliss project, the only aspect of Section 2808 construction to which plaintiffs have even any arguable connection. See supra p.21. Apart from that, there is no connection whatsoever between plaintiffs and any Section 2808 construction, and the district court therefore abused its discretion in granting an injunction preventing 38 Case: 19-51144 Document: 00515337823 Page: 48 Date Filed: 03/09/2020 defendants from spending any funds to complete Section 2808 construction nationwide. Gill, 138 S. Ct. at 1934. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed. 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, Room 7246 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 353-8189 courtney.l.dixon@usdoj.gov March 2020 39 Case: 19-51144 Document: 00515337823 Page: 49 Date Filed: 03/09/2020 CERTIFICATE OF SERVICE I hereby certify that on March 9, 2020, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. s/ Courtney L. Dixon Courtney L. Dixon Case: 19-51144 Document: 00515337823 Page: 50 Date Filed: 03/09/2020 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 9,436 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2016 in Garamond 14point font, a proportionally spaced typeface. s/ Courtney L. Dixon Courtney L. Dixon Case: 19-51144 Document: 00515337823 Page: 51 Date Filed: 03/09/2020 ADDENDUM Case: 19-51144 Document: 00515337823 Page: 52 Date Filed: 03/09/2020 TABLE OF CONTENTS Consolidated Appropriations Act, 2019, Pub. L. 116-6, div. A..................................... A1 Consolidated Appropriations Act, 2019, Pub. L. 116-6, div. D, § 739 ......................... A3 10 U.S.C. § 284 ................................................................................................................... A4 10 U.S.C. § 2808 ................................................................................................................. A8 Case: 19-51144 Document: 00515337823 Page: 53 Date Filed: 03/09/2020 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, div. A For necessary expenses of the U.S. Customs and Border Protection for procurement, construction, and improvements, including procurements to buy marine vessels, aircraft, and unmanned aerial systems, $2,515,878,000, of which $870,656,000 shall remain available until September 30, 2021, and of which $1,645,222,000 shall remain available until September 30, 2023. .... SEC. 230. (a) Of the total amount made available under “U.S. Customs and Border Protection--Procurement, Construction, and Improvements”, $2,370,222,000 shall be available only as follows: (1) $1,375,000,000 is for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector; (2) $725,000,000 is for the acquisition and deployment of border security technologies and trade and travel assets and infrastructure, to include $570,000,000 for non-intrusive inspection equipment at ports of entry; and (3) $270,222,000 is for construction and facility improvements, to include $222,000,000 for humanitarian needs, $14,775,000 for Office of Field Operations facilities, and $33,447,000 for Border Patrol station facility improvements. (b) The amounts designated in subsection (a)(1) shall only be available for operationally effective designs deployed as of the date of the Consolidated Appropriations Act, 2017 (Public Law 115–31), such as currently deployed steel bollard designs, that prioritize agent safety. (c) Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Appropriations of the Senate, the Committee on Appropriations of the House of Representatives, and the Comptroller General of the United States an updated risk-based plan for improving security along the borders of the United States that includes the elements required under subsection (a) of section 231 of division F of the Consolidated Appropriations Act, 2018 (Public Law 115–141), which shall be evaluated in accordance with subsection (b) of such section. A1 Case: 19-51144 Document: 00515337823 Page: 54 Date Filed: 03/09/2020 SEC. 231. None of the funds made available by this Act or prior Acts are available for the construction of pedestrian fencing— (1) within the Santa Ana Wildlife Refuge; (2) within the Bentsen-Rio Grande Valley State Park; (3) within La Lomita Historical park; (4) within the National Butterfly Center; or (5) within or east of the Vista del Mar Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge. A2 Case: 19-51144 Document: 00515337823 Page: 55 Date Filed: 03/09/2020 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, div. D, § 739 SEC. 739. 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. A3 Case: 19-51144 Document: 00515337823 Page: 56 Date Filed: 03/09/2020 10 U.S.C. § 284 § 284. Support for counterdrug activities and activities to counter transnational organized crime. (a) Support to other agencies.--The Secretary of Defense may provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency for any of the purposes set forth in subsection (b) or (c), as applicable, if-(1) in the case of support described in subsection (b), such support is requested-(A) by the official who has responsibility for the counterdrug activities or activities to counter transnational organized crime of the department or agency of the Federal Government, in the case of support for other departments or agencies of the Federal Government; or (B) by the appropriate official of a State, local, or tribal government, in the case of support for State, local, or tribal law enforcement agencies; or (2) in the case of support described in subsection (c), such support is requested by an appropriate official of a department or agency of the Federal Government, in coordination with the Secretary of State, that has counterdrug responsibilities or responsibilities for countering transnational organized crime. (b) Types of support for agencies of United States.--The purposes for which the Secretary may provide support under subsection (a) for other departments or agencies of the Federal Government or a State, local, or tribal law enforcement agencies, are the following: (1) The maintenance and repair of equipment that has been made available to any department or agency of the Federal Government or to any State, local, or tribal government by the Department of Defense for the purposes of-(A) preserving the potential future utility of such equipment for the Department of Defense; and (B) upgrading such equipment to ensure compatibility of that equipment with other equipment used by the Department. (2) The maintenance, repair, or upgrading of equipment (including computer software), other than equipment referred to in paragraph (1) for the purpose of-(A) ensuring that the equipment being maintained or repaired is compatible with equipment used by the Department of Defense; and A4 Case: 19-51144 Document: 00515337823 Page: 57 Date Filed: 03/09/2020 (B) upgrading such equipment to ensure the compatibility of that equipment with equipment used by the Department. (3) The transportation of personnel of the United States and foreign countries (including per diem expenses associated with such transportation), and the transportation of supplies and equipment, for the purpose of facilitating counterdrug activities or activities to counter transnational organized crime within or outside the United States. (4) The establishment (including an unspecified minor military construction project) and operation of bases of operations or training facilities for the purpose of facilitating counterdrug activities or activities to counter transnational organized crime of the Department of Defense or any Federal, State, local, or tribal law enforcement agency within or outside the United States. (5) Counterdrug or counter-transnational organized crime related training of law enforcement personnel of the Federal Government, of State, local, and tribal governments, including associated support expenses for trainees and the provision of materials necessary to carry out such training. (6) The detection, monitoring, and communication of the movement of-(A) air and sea traffic within 25 miles of and outside the geographic boundaries of the United States; and (B) surface traffic outside the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary. (7) Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States. (8) Establishment of command, control, communications, and computer networks for improved integration of law enforcement, active military, and National Guard activities. (9) The provision of linguist and intelligence analysis services. (10) Aerial and ground reconnaissance. ... (g) Relationship to other support authorities.-(1) Additional authority.--The authority provided in this section for the support of counterdrug activities or activities to counter transnational organized crime by the Department of Defense is in addition to, and except as provided in paragraph (2), not subject to the other requirements of this chapter. (2) Exception.--Support under this section shall be subject to the provisions of section 375 and, except as provided in subsection (e), section 376 of this title. A5 Case: 19-51144 Document: 00515337823 Page: 58 Date Filed: 03/09/2020 (h) Congressional notification.-(1) In general.--Not less than 15 days before providing support for an activity under subsection (a), the Secretary of Defense shall submit to the appropriate committees of Congress a written and electronic notice of the following: (A) In the case of support for a purpose described in subsection (c)-(i) the country the capacity of which will be built or enabled through the provision of such support; (ii) the budget, implementation timeline with milestones, anticipated delivery schedule for support, and completion date for the purpose or project for which support is provided; (iii) the source and planned expenditure of funds provided for the project or purpose; (iv) a description of the arrangements, if any, for the sustainment of the project or purpose and the source of funds to support sustainment of the capabilities and performance outcomes achieved using such support, if applicable; (v) a description of the objectives for the project or purpose and evaluation framework to be used to develop capability and performance metrics associated with operational outcomes for the recipient; (vi) information, including the amount, type, and purpose, about the support provided the country during the three fiscal years preceding the fiscal year for which the support covered by the notice is provided under this section under-(I) this section; (II) section 23 of the Arms Export Control Act (22 U.S.C. 2763); (III) peacekeeping operations; (IV) the International Narcotics Control and Law Enforcement program under section 481 of the Foreign Assistance Act of 1961 (22 U.S.C. 2291); (V) Nonproliferation, Anti-Terrorism, Demining, and Related Programs; (VI) counterdrug activities authorized by section 1004 of the National Defense Authorization Act for Fiscal Year 1991 (10 U.S.C. 374 note) and section 1033 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85); or (VII) any other significant program, account, or activity for the provision of security assistance that the Secretary of Defense and the Secretary of State consider appropriate; A6 Case: 19-51144 Document: 00515337823 Page: 59 Date Filed: 03/09/2020 (vii) an evaluation of the capacity of the recipient country to absorb the support provided; and (viii) an evaluation of the manner in which the project or purpose for which the support is provided fits into the theater security cooperation strategy of the applicable geographic combatant command. (B) In the case of support for a purpose described in subsection (b) or (c), a description of any small scale construction project for which support is provided. (2) Coordination with Secretary of State.--In providing notice under this subsection for a purpose described in subsection (c), the Secretary of Defense shall coordinate with the Secretary of State. (i) Definitions.--In this section: (1) The term “appropriate committees of Congress” means-(A) the Committee on Armed Services, the Committee on Appropriations, and the Committee on Foreign Affairs of the House of Representatives; and (B) the Committee on Armed Services, the Committee on Appropriations, and the Committee on Foreign Relations of the Senate. (2) The term “Indian tribe” means a Federally recognized Indian tribe. (3) The term “small scale construction” means construction at a cost not to exceed $750,000 for any project. (4) The term “tribal government” means the governing body of an Indian tribe, the status of whose land is “Indian country” as defined in section 1151 of title 18 or held in trust by the United States for the benefit of the Indian tribe. (5) The term “tribal law enforcement agency” means the law enforcement agency of a tribal government. (6) The term “transnational organized crime” means self-perpetuating associations of individuals who operate transnationally for the purpose of obtaining power, influence, monetary, or commercial gains, wholly or in part by illegal means, while protecting their activities through a pattern of corruption or violence or through a transnational organization structure and the exploitation of transnational commerce or communication mechanisms. A7 Case: 19-51144 Document: 00515337823 Page: 60 Date Filed: 03/09/2020 10 U.S.C. 2808 § 2808. Construction authority in the event of a declaration of war or national emergency. (a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. (b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects. (c) The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency. A8