Case: 19-51144 Document: 00515396947 Page: 1 Date Filed: 04/27/2020 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 RESPONSE-REPLY BRIEF FOR DEFENDANTS-APPELLANTS-CROSS-APPELLEES 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: 00515396947 Page: 2 Date Filed: 04/27/2020 TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF ARGUMENT .............................................. 1 ARGUMENT ............................................................................................................................ 5 I. The District Court’s Order Prohibiting Construction Under Section 2808 Must Be Reversed ................................................................ 5 A. Plaintiffs Lack Article III Standing ................................................................. 5 B. Plaintiffs Fall Outside the Zone of Interests of the CAA Provisions They Invoke ............................................................ 11 C. Congress’s Appropriation to DHS Does Not Preclude DoD From Using its Appropriated Funds Pursuant to Its Own Statutory Grants of Authority ................................................... 21 D. The District Court Abused Its Discretion By Granting an Injunction..................................................................................................... 30 II. The District Court Did Not Err in Refusing to Enjoin DoD’s Section 284 Counter-Drug Construction.............................................. 33 A. Plaintiffs Lack Article III Standing ............................................................... 35 B. Plaintiffs’ Interests Fall Outside the Zone of Interests of the Statutory Limitations They Invoke .................................................... 37 C. DoD’s Transfers and Expenditures for Counter-Drug Construction Are Lawful ................................................................................ 43 D. The District Court Did Not Abuse Its Discretion in Declining to Enjoin Section 284 Construction ........................................... 50 CONCLUSION ...................................................................................................................... 53 CERTIFICATE OF SERVICE Case: 19-51144 Document: 00515396947 CERTIFICATE OF COMPLIANCE ii Page: 3 Date Filed: 04/27/2020 Case: 19-51144 Document: 00515396947 Page: 4 Date Filed: 04/27/2020 TABLE OF AUTHORITIES Cases: Page(s) ACORN v. Fowler, 178 F.3d 350 (5th Cir. 1999) ..............................................................................................10 Agostini v. Felton, 521 U.S. 203 (1997) .............................................................................................................15 Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) .............................................................................................................15 Association for Retarded Citizens of Dallas v. Dallas Cty. Mental Health, 19 F.3d 241 (5th Cir. 1994) ................................................................................................10 Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) ................................................................................................ 9 Beacon Prods. Corp. v. Reagan, 814 F.2d 1 (1st Cir. 1987) ...................................................................................................26 Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................................ 14, 18, 30 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) .............................................................................................................13 Bond v. United States, 564 U.S. 211 (2011) ...................................................................................................... 19, 20 Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318 (1977) ................................................................................................ 13-14, 15 Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................................32 Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469 (5th Cir. 2013) ..............................................................................................14 iii Case: 19-51144 Document: 00515396947 Page: 5 Date Filed: 04/27/2020 City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) .............................................................................................. 6 City of Olmsted Falls v. FAA 292 F.3d 261 (D.C. Cir. 2002) ............................................................................................. 6 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) ............................................................................................36 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ....................................................................................................... 35-36 Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) .............................................................................................................14 Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) ..............................................................................................19 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ............................................................................................................... 8 Dalton v. Spector, 511 U.S. 462 (1994) .............................................................................................................17 Department of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) ...........................................................................................................33 Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) ........................................................................................... 9 Gill v. Whitford, 138 S. Ct. 1916 (2018) .................................................................................................... 8, 32 Glass v. Paxton, 900 F.3d 233 (5th Cir. 2018) ..............................................................................................20 Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) .............................................................................................................15 iv Case: 19-51144 Document: 00515396947 Page: 6 Date Filed: 04/27/2020 Hernandez v. Mesa, 140 S. Ct. 335 (2020) .................................................................................................... 13, 16 Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (2019) .................................................................................................. 24, 46 Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir. 1985) ........................................................................................... 5, 7 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ................................................................................... 12, 14, 15, 16, 20 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................................36 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ................................................................................................ 11-12, 42 McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991) ....................................................................................................... 24-25 Mistretta v. United States, 488 U.S. 361 (1989) .............................................................................................................28 National Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) ...................................................................................................... 31, 51 Navy Chaplaincy, In re, 534 F.3d 756 (D.C. Cir. 2008) ............................................................................................. 9 NCAA v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013) ................................................................................................. 9 Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005) ................................................................................................22 Nken v. Holder, 556 U.S. 418 (2009) .............................................................................................................52 OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) ..............................................................................................11 v Case: 19-51144 Document: 00515396947 Page: 7 Date Filed: 04/27/2020 Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) ............................................................................................. 5 Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) .............................................................................................................21 Soudavar v. Bush, 46 F. App’x 731 (5th Cir. 2002) ........................................................................................25 Scheduled Airlines Traffic Offices, Inc. v. Department of Def., 87 F.3d 1356 (D.C. Cir. 1996) ...........................................................................................18 Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) ..............................................................................................11 Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794 (5th Cir. 2012) ..............................................................................................14 Sierra Club v. Trump 2019 WL 2715422 (N.D. Cal. Jun. 28, 2019) ..................................................................16 Sierra Club v. Trump 929 F.3d 670 (9th Cir. 2019) ..............................................................................................42 Thompson v. North Am. Stainless, LP, 562 U.S. 170 (2011) ................................................................................................ 12, 16, 18 Trump v. Hawaii, 138 S. Ct. 2392 (2018) .........................................................................................................15 Trump v. Sierra Club, 140 S. Ct. 1 (2019) ....................................................................................... 2, 16, 34, 42, 52 United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011) ........................................................................................ 25, 26 United States v. Mirza, 454 F. App’x 249 (5th Cir. 2011) ......................................................................................28 vi Case: 19-51144 Document: 00515396947 Page: 8 Date Filed: 04/27/2020 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) .............................................................................................................13 Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997) ................................................................................................ 9 Whitman v. American Trucking Assocs., 531 U.S. 457 (2001) ............................................................................................................27 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ............................................................................................. 31, 32, 50, 51 Wyoming v. Oklahoma, 502 U.S. 437 (1992) .......................................................................................................... 1, 5 Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220 (10th Cir. 2012) ................................................................................... 5, 6, 7 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .........................................................................................................41 Statutes: Administrative Procedure Act, 5 U.S.C. § 706 ................................................................................................................ 13, 17 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. J, § 131, 132 Stat. 805 ............................................................20 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 ............................................................................ 21, 22, 24 Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) ............................. 34, 38, 39, 40, 41, 45, 47 National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified at 50 U.S.C. §§ 1601-1651) ................................................................................25 10 U.S.C. § 284.........................................................................................................................33 vii Case: 19-51144 Document: 00515396947 Page: 9 Date Filed: 04/27/2020 10 U.S.C. § 284(a) ............................................................................................................. 49, 50 10 U.S.C. § 284(b)(3) ...............................................................................................................50 10 U.S.C. § 2801(a) ..................................................................................................................30 10 U.S.C. § 2801(c)(4) .............................................................................................................30 10 U.S.C. § 2808 ................................................................................................................. 1, 12 10 U.S.C. § 2808(a) ..................................................................................................................29 50 U.S.C. § 1621(a) ..................................................................................................................25 50 U.S.C. § 1622 ......................................................................................................................27 50 U.S.C. § 1622(a)(1) .............................................................................................................26 50 U.S.C. § 1622(b) .................................................................................................................26 50 U.S.C. § 1631 ......................................................................................................................28 50 U.S.C. § 1641 ......................................................................................................................26 Legislative Materials: H.J. Res. 46, 116th Cong. (2019)...........................................................................................27 H.R. Rep. No. 93-662 (1973) .......................................................... 38, 39, 40, 41, 47, 48, 49 H.R. Rep. No. 114-840 (2016)...............................................................................................50 H.R. Rep. No. 115-952 (2018)........................................................................................ 38, 46 S.J. Res. 54, 116th Cong. (2019) ............................................................................................27 S. Rep. No. 94-1168 (1976) ....................................................................................................28 Other Authorities: 84 Fed. Reg. 4949 (Feb. 15, 2019) .......................................................................................... 9 viii Case: 19-51144 Document: 00515396947 Page: 10 Date Filed: 04/27/2020 U.S. Gov’t Accountability Office, GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process (2005), https://go.usa.gov/xvErP ................................................24 U.S. Gov’t Accountability Office, GAO-17-797SP, Principles of Federal Appropriations Law (4th ed. rev. 2017), http://go.usa.gov/xd7eg ................................23 U.S. Gov’t Accountability Office, Principles of Federal Appropriations Law (4th ed. Rev. 2016) https://go.usa.gov/xvQ3Q ............................................. 39, 47 ix Case: 19-51144 Document: 00515396947 Page: 11 Date Filed: 04/27/2020 INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs fail to rehabilitate the district court’s order, which bars DoD from completing any border-barrier construction projects pursuant to 10 U.S.C. § 2808. Plaintiffs do not and cannot overcome the government’s showing that they have no right to sue, as they have not suffered an Article III injury from Section 2808 construction, and their attenuated reputational, economic, and organizational interests fall outside of the zone of interests protected by the CAA provisions they invoke. Moreover, even if plaintiffs have a right to sue, they have not demonstrated that a statute appropriating funds to DHS impliedly prohibits DoD from relying on its own previous appropriations and independent military-construction authority under Section 2808. Plaintiffs’ cross-appeal fares no better as they similarly have no Article III injury, and they are not within the zone of interests to enforce the statutory provisions they seek to enforce. DoD’s transfers and expenditures for Section 284 construction are also entirely lawful, as the GAO has concluded. In all events, any injunction against defendants’ border-barrier construction is not warranted here. I. A. Plaintiffs have failed to demonstrate their Article III standing. El Paso asserts that the federal government’s deferral of a $20 million project at Fort Bliss would have boosted El Paso’s economy, but a locality cannot establish an injury-infact based on a “decline in general tax revenues” as an indirect result of federal government action. Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992). In any event, El Paso has not even established any economic injuries, and any harm from the deferral Case: 19-51144 Document: 00515396947 Page: 12 Date Filed: 04/27/2020 of the $20 million from Fort Bliss would at most provide El Paso with standing to challenge the deferral of that $20 million. El Paso alternatively asserts that it suffered reputational injury from the President’s proclamation of a national emergency, but the Proclamation does not mention El Paso, and the district court’s injunction against Section 2808 construction does not (and cannot) redress any purported injury from the Proclamation. BNHR similarly lacks standing. BNHR insists that it has spent resources “respond[ing] to” the government’s Section 2808 construction, but BNHR has not shown that this construction has directly impaired its organizational mission, and thereby caused a drain on its resources to counteract that injury. B. Plaintiffs also fall outside the zone of interests of the CAA provisions they invoke. Plaintiffs assert that they have an implied equitable cause of action, and they invoke the “structural” protections of the “Appropriations Clause,” but the zone-ofinterests requirement applies to those claims as well. Indeed, those same arguments were presented in Trump v. Sierra Club, 140 S. Ct. 1 (2019), but the Supreme Court granted the government’s motion for a stay pending appeal, concluding the government had made a sufficient showing that the plaintiffs there fell outside the zone-of-interests of the statute they sought to enforce. C. In any event, plaintiffs are wrong on the merits. The plain text of the CAA, which appropriated funds to a specific account within DHS’s budget, and specified how the funds in that account were to be used, does not conflict in any way with 2 Case: 19-51144 Document: 00515396947 Page: 13 Date Filed: 04/27/2020 DoD’s use of its own appropriations and longstanding statutory authority under Sections 284 and 2808. And plaintiffs misinterpret Section 739, insisting that the phrase “program, project, or activity” must be given what they contend is its “ordinary” meaning, but ignoring the appropriations context where that term of art appears. Plaintiffs’ alternative arguments for affirmance fail. The National Emergencies Act vests Congress, not the Courts, with oversight of the President’s national emergency declarations. And plaintiffs are not proper parties to enforce Section 2808, which the government has fully complied with. D. In all events, plaintiffs fail to overcome the government’s showing that the district court abused its discretion in granting a permanent injunction prohibiting any Section 2808 construction nationwide, where plaintiffs assert only attenuated harms from Section 2808 construction, but the injunction directly interferes with the government’s border-security efforts. II. A. Plaintiffs’ cross-appeal fails at the outset because they lack Article III standing. El Paso contends that it has suffered economic harms, but the closest Section 284 construction that it challenges is in New Mexico, and it offers only speculation that that construction will cause unspecified “fears” and “uncertainty” among third parties. BNHR lacks standing for the same reasons it lacks standing to challenge the Section 2808 construction. 3 Case: 19-51144 Document: 00515396947 Page: 14 Date Filed: 04/27/2020 B. Plaintiffs are also outside the zone of interests of the statutory limitations they seek to enforce, just as with their challenge to Section 2808 construction. Plaintiffs seek to enforce the limitations in Section 8005 of DoD’s annual appropriations act, but that provision governs DoD’s internal transfer of funds, and has nothing to do with any effect that the funded and statutorily authorized projects may have on neighboring localities or the organizational interests plaintiffs assert here. C. The government’s transfers and expenditures for counter-drug construction are lawful in any event. Plaintiffs rely on the same flawed arguments about the CAA. Plaintiffs further argue that DoD’s internal transfers violate the terms of Section 8005, which authorizes the Secretary to transfer funds between internal DoD accounts for higher priority military requirements that are unforeseen and have not been denied by Congress. But Congress’s later decision concerning budget requests by DHS for that agency’s border wall funding did not alter DoD’s authority to transfer appropriated funds to provide specific drug-interdiction assistance. Indeed, when asked by Members of Congress whether the transfers here were lawful, the GAO agreed with DoD. D. Any injunction against DoD’s Section 284 construction would be unwarranted in all events. Plaintiffs’ injuries do not satisfy even the threshold requirements of Article III, let alone constitute irreparable injuries that outweigh the real and immediate harm an injunction against Section 284 construction would pose to the government and the public interest in stopping counter-narcotics trafficking. 4 Case: 19-51144 Document: 00515396947 Page: 15 Date Filed: 04/27/2020 The equities tilt even more sharply in the government’s favor here than in Sierra Club, where the Supreme Court granted a stay in the face of similar arguments. ARGUMENT I. The District Court’s Order Prohibiting Construction Under Section 2808 Must Be Reversed A. Plaintiffs Lack Article III Standing 1. Plaintiffs principally argue (Br. 20-23) that El Paso has standing because the diverted Fort Bliss construction project would have incidentally “boosted growth and tax revenues” in the County by creating jobs and increasing the value of real estate. But a “decline in general tax revenues” as an indirect result of federal government action does not constitute an Article III injury-in-fact. Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992); see Opening Br. 18-19. El Paso argues that Wyoming has no bearing here because that case “involved a state,” “with a large, diverse economy,” as opposed to a “community like El Paso” with a “comparatively modest economy.” Br. 22-23. But the rule recognized in Wyoming, and applied in many other cases, does not turn in any way on the comparative size or diversity of a local economy. Rather, those cases recognize that “virtually all federal policies” will have some “unavoidable economic repercussions” on a locality’s real estate market or tax base. Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976); accord Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1234 (10th Cir. 2012); Iowa ex rel. Miller v. Block, 771 F.2d 347, 354 (8th Cir. 1985). For 5 Case: 19-51144 Document: 00515396947 Page: 16 Date Filed: 04/27/2020 that reason, in order to have an Article III injury, as opposed to merely a “generalized grievance” that would permit nearly limitless “litigation against the federal government,” a locality must demonstrate that federal government action has caused it “a direct injury in the form of a loss of specific tax revenue.” Department of Interior, 674 F.3d at 1234. The out-of-circuit cases relied upon by plaintiffs are not to the contrary. In City of Olmsted Falls v. FAA, the D.C. Circuit found that, although it was a “close question,” a city located two miles away from an airport had standing to challenge the federal government’s approval of a construction project at the airport because the city would allegedly suffer economic harms resulting directly from the “environmental impacts” of the approved construction project. 292 F.3d 261, 267-68 (D.C. Cir. 2002). Similarly, in City of Oakland v. Lynch, the Ninth Circuit concluded that a city had standing to challenge the federal government’s filing of a forfeiture action against a medical marijuana dispensary, because the City collected taxes on the marijuana sales at that dispensary and the forfeiture action would therefore cause it to lose that specific tax revenue. 798 F.3d 1159, 1161-62, 1164 (9th Cir. 2015). Whether or not those non-controlling cases were decided correctly on their own facts, they are factually inapposite here. El Paso alleges only that the federal government’s deferral of a federal construction project will cause a decline in the County’s general tax revenues because that construction will have some indirect effect on El Paso’s real estate or job 6 Case: 19-51144 Document: 00515396947 Page: 17 Date Filed: 04/27/2020 markets. See Br. 20-23. That is insufficient. See Department of Interior, 674 F.3d at 1234-35 (relying on Wyoming v. Oklahoma to conclude that a State had not suffered an Article III injury from reduced tourism and a corresponding decline in general tax revenues caused by the federal government’s actions with respect to national parks in the State); Block, 771 F.2d at 353-54 (concluding State lacked injury-in-fact from increased unemployment and decreased state tax revenues indirectly caused by the federal government’s implementation of disaster-relief programs). Moreover, as the government’s opening brief explained (p. 20), El Paso has failed to establish even any indirect economic injuries. El Paso submitted its declarations before the Secretary made any decision as to which projects would be deferred, and El Paso’s declarations merely state summarily that Fort Bliss is the “lifeblood” of El Paso’s economy that “create[s] nearly 62,000 jobs.” ROA.925-26. Nothing in the record establishes that the deferral of the proposed $20 million roads project at Fort Bliss will have any specific effect on jobs, let alone that the deferral will indirectly harm El Paso’s economy as a result. ROA.926. And the fact that El Paso submitted its declarations before the Secretary selected the Fort Bliss project to defer only underscores that plaintiffs’ asserted harms are based entirely on speculation and unsupported assumptions. See ROA.925-26. Finally, even assuming El Paso could establish an Article III injury based on asserted indirect loss of tax revenue from the deferral of the proposed defense access roads project, that injury would at most provide El Paso with standing to enjoin the 7 Case: 19-51144 Document: 00515396947 Page: 18 Date Filed: 04/27/2020 use of that $20 million, not all Section 2808 deferrals and expenditures nationwide. See Opening Br. 21. A plaintiff has standing only to “seek a remedy” for government action that has caused it injury. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 & n.5 (2006); see Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (“Standing is not dispensed in gross.”). Regardless, whether considered under the rubric of Article III standing or the district court’s equitable discretion in fashioning a remedy, the district court plainly erred in prohibiting defendants from spending any funds on any Section 2808 projects where El Paso has no connection whatsoever to any other funds or any actual Section 2808 project. See Opening Br. 21, 38-39; infra pp. 30-33. 2. Plaintiffs also assert (Br. 24) that El Paso has suffered reputational harm, not from any actual Section 2808 construction project, but rather from the President’s Proclamation of a national emergency. But the district court’s injunction against Section 2808 construction does not purport to (and cannot) redress any injuries that El Paso claims to have suffered from the Proclamation. That injunction says nothing about the Proclamation or El Paso’s reputation; it merely prohibits certain borderbarrier construction under Section 2808 (that is not occurring in El Paso) based on an alleged budgetary constraint that has nothing to do with the conditions in El Paso. See Opening Br. 17. Moreover, the Proclamation does not mention El Paso, and it does not independently authorize any border-barrier construction. Instead, it describes a specific problem at the southern border, and makes certain statutory authorities (such 8 Case: 19-51144 Document: 00515396947 Page: 19 Date Filed: 04/27/2020 as Section 2808) available to the Secretary of Defense, to be used at the discretion of the Secretary in accordance with the statutes’ terms. 84 Fed. Reg. 4949 (Feb. 15, 2019). And plaintiffs do not dispute that the Secretary has not approved any Section 2808 projects in El Paso—the closest is nearly 100 miles away in a different state. See Opening Br. 15-16. Plaintiffs thus gain no support from reputational injury cases where courts found plaintiffs had standing to challenge government actions directed at them, causing them demonstrable harms. See, e.g., Walker v. City of Mesquite, 129 F.3d 831 832 (5th Cir. 1997) (attorney had standing to appeal sanction finding him “guilty of ‘blatant misconduct’”); 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 an unfit parent”); NCAA v. Governor of New Jersey, 730 F.3d 208, 22021 (3d Cir. 2013) (sports league 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”). In contrast to the direct government action and asserted harms in these cases, El Paso alleges only a disagreement with the message of the Proclamation generally and the President’s views regarding the need for border-barrier construction, which is not sufficient. See Barber v. Bryant, 860 F.3d 345, 355 (5th Cir. 2017) (rejecting injury based on a plaintiff’s “offense at the message” sent by a law where the law did not directly injure the plaintiffs); accord In re Navy Chaplaincy, 534 F.3d 756, 764-65 (D.C. Cir. 2008) (Kavanaugh, J.) (explaining 9 Case: 19-51144 Document: 00515396947 Page: 20 Date Filed: 04/27/2020 that it would “eviscerate well-settled standing limitations” to allow any plaintiff to sue over a “governmental message” with which he or she disagreed). 3. BNHR has likewise failed to establish its standing. Plaintiffs contend that BNHR has standing because it has devoted its resources to “respond[ing] to” the government’s Section 2808 construction efforts. Br. 27. But if that were correct, “any sincere plaintiff could bootstrap standing by expending its resources in response to actions” with which it disagrees. Association for Retarded Citizens of Dallas v. Dallas Cty. Mental Health, 19 F.3d 241, 244 (5th Cir. 1994). That conclusion is “at odds with Lujan’s definition of injury in fact.” Id.; see Opening Br. 21-24. BNHR cannot show that the government’s action has caused a “concrete and demonstrable” injury—i.e., directly impaired the organization’s mission and thereby caused a drain on its resources to counteract that injury. See ACORN v. Fowler, 178 F.3d 350, 360-61 & n.7 (5th Cir. 1999). The only connection BNHR attempts to draw between its organizational mission and any actual border-barrier construction is that construction in New Mexico will force its members to deal with unspecified “noise,” “traffic,” and “blight,” and BNHR asserts it has therefore had to “increase[] [its] ‘Know Your Rights’ presentations five-fold.” Br. 28-29. But BNHR fails to explain why its members’ concerns with increased noise and traffic (not caused by any identified Section 2808 construction project, see ROA.940-41), require it to increase presentations to “educate people about their constitutional rights and teach them how to document any violation of these rights,” ROA.932. As defendants’ opening brief 10 Case: 19-51144 Document: 00515396947 Page: 21 Date Filed: 04/27/2020 explained, BNHR’s declarants trace their organizational expenditures to a host of reasons unrelated to any Section 2808 construction. See, e.g., ROA.936 (discussing retaining local attorneys to “document Border Patrol’s and ICE’s violations of constitutional rights”); ROA.940 (discussing “law enforcement” no longer being “supportive” of BNHR’s major policy initiative). Plaintiffs thus cannot even show the type of link between the allegedly unlawful practice and the asserted injury to the organization’s mission that was present in the cases they cite. See OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017) (advocacy group that routinely conducted voter-outreach efforts had standing to challenge voting law that “deterred some of [its members] from voting,” requiring it to spend additional time in its outreach efforts to “educat[e] its members” about the specifics of that law so that they could successfully vote pursuant to the law); Scott v. Schedler, 771 F.3d 831, 838 (5th Cir. 2014) (advocacy group that conducted voterregistration drives had standing where it had to conduct additional drives to compensate for the defendant’s alleged failure to “provide voter registration forms to applicants” in legally required locations). B. Plaintiffs Fall Outside the Zone of Interests of the CAA Provisions They Invoke Even assuming plaintiffs had Article III standing, they are not within “‘the zone of interests to be protected or regulated by the statute[s]’ that [they] say w[ere] violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 11 Case: 19-51144 Document: 00515396947 Page: 22 Date Filed: 04/27/2020 209, 224 (2012). As the government explained (Opening Br. 24-27), the zone-ofinterests requirement is a general presumption limiting the plaintiffs who “may invoke [a] cause of action” that Congress has authorized, Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-30 (2014), and reflects the fact that Congress typically does not intend the “absurd consequences” that could result from extending a cause of action to “plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions” they seek to enforce, Thompson v. North Am. Stainless, LP, 562 U.S. 170, 176-78 (2011). Plaintiffs’ asserted indirect economic, reputational, and organizational injuries are not even “arguably” protected by the provisions of the CAA they invoke. See Lexmark, 572 U.S. at 130. 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 assert reputational, economic, and organizational harms as an indirect result of how another agency (DoD) has used its own separately appropriated funds and statutory authorities. Nor does anything in Section 739, a boilerplate provision that has appeared in appropriations statutes since 2014, suggest that Congress intended to allow suits to enforce the attenuated interests that plaintiffs assert. See Opening Br. 25. 1. Plaintiffs defend in two paragraphs (Br. 34-35) the district court’s conclusion that “the zone-of-interests test is inapposite” “when a plaintiff seeks equitable relief against a defendant for exceeding its statutory authority.” ROA.2121. As the 12 Case: 19-51144 Document: 00515396947 Page: 23 Date Filed: 04/27/2020 government’s opening brief demonstrated (pp. 25-27), that holding is untenable. Plaintiffs brought an APA claim against defendants, and alleged that defendants’ expenditures were “in excess of statutory jurisdiction” and “not in accordance with law” because defendants violated provisions of the CAA. ROA.279-80 (quoting 5 U.S.C. § 706). The zone-of-interests requirement indisputably applies to APA claims, and it would defy both law and logic to conclude that plaintiffs who are not within the zone of interests to enforce statutory limitations under the express APA cause of action that Congress has provided can nonetheless sue to enforce those same limitations under an implied cause of action. See 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 comparable express cause of action.’” (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975)). Plaintiffs offer the remarkable assertion that the zone-of-interests requirement applies “only” to APA claims. Br. 35. That is incorrect (and also irrelevant because they brought an APA claim). Both the Supreme Court and this Court have applied the zone-of-interests requirement to statutory causes of action outside of the APA, as well as non-statutory claims to enforce “constitutional guarantee[s].” See, e.g., Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (“[T]he Court has required that the plaintiff’s complaint fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” (quotation marks omitted)); Boston Stock Exch. v. State Tax 13 Case: 19-51144 Document: 00515396947 Page: 24 Date Filed: 04/27/2020 Comm’n, 429 U.S. 318, 320-21 n.3 (1977) (applying the zone-of-interests requirement to plaintiffs seeking to enforce the dormant Commerce Clause); Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474-75 (5th Cir. 2013) (same). Plaintiffs rely (Br. 35) on dicta from Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., but that opinion makes clear that the zone-of-interests test applies to suits “under a federal statute, constitutional provision, or the APA,” 702 F.3d 794, 802 (5th Cir. 2012) (emphasis added). Plaintiffs suggest that the application of the zone-of-interests requirement is confined to the APA because the test “origin[ated] ‘as a gloss on the meaning of” the APA’s cause of action. Br. 35 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987)). As the Supreme Court has explained, however, although the Court “announced the modern zone-of-interests test in 1971” in a case interpreting the APA, “its roots lie in the common-law.” Lexmark, 572 U.S. at 130 & n.5. The test is “a requirement of general application,” which “applies unless it is expressly negated” by Congress. Id. at 129 (quoting Bennett v. Spear, 520 U.S. 154, 163 (1997)); see id. at 130-31 (applying stringent version of test to Lanham Act suit). Plaintiffs are similarly wrong (Br. 35) that the Supreme Court’s reference in Lexmark to “legislatively conferred” causes of action, 572 U.S. at 127, 129, narrowed the doctrine’s application to cases involving only statutory claims. Although the Supreme Court in Lexmark discussed the “legislatively” or “statutorily created” causes of action at issue in that case, the Court did not suggest—let alone hold—that the 14 Case: 19-51144 Document: 00515396947 Page: 25 Date Filed: 04/27/2020 zone-of-interests requirement does not apply to suits for implied equitable relief, and the Court certainly did not purport to overrule any of its prior cases applying the zone-of-interests test to equitable suits to enforce constitutional provisions, e.g., Boston Stock Exch., 429 U.S. at 320-21; see Agostini v. Felton, 521 U.S. 203, 237 (1997) (lower courts must “leav[e] to [the Supreme] Court the prerogative of overruling its own decisions”). Unsurprisingly, therefore, the Supreme Court in Trump v. Hawaii, 138 S. Ct. 2392 (2018), did not abandon the zone-of-interests requirement for the constitutional claim there. Contra Br. 35. Rather, the Court concluded that it did not need to address whether “the scope of plaintiffs’ Establishment Clause rights” included “a legally protected interest in the admission of . . . foreign nationals,” because the Court agreed with the government on the merits. Hawaii, 138 S. Ct. at 2416. In any event, the reference in Lexmark to “legislatively” or “statutorily created” causes of action necessarily encompasses implied equitable claims. Although those causes of action are “the creation of courts of equity,” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015), the courts’ equitable powers are themselves conferred by statute, Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999). Indeed, the courts’ equitable powers are subject to “express and implied statutory limitations,” Armstrong, 575 U.S. at 327, and constrained by historical “tradition[],” Grupo Mexicano, 527 U.S. at 319, which includes the common-law “roots” of the zone-of-interests requirement itself, Lexmark, 572 U.S. at 130 n.5. 15 Case: 19-51144 Document: 00515396947 Page: 26 Date Filed: 04/27/2020 Congress both creates a statute’s limitations and chooses whether or not to provide a cause of action, either expressly (through statutes such as the APA or otherwise), or implicitly (through the grant of equity jurisdiction). Again, it would turn the separation of powers on its head to allow plaintiffs whom Congress did not authorize to invoke the APA’s express cause of action nevertheless to invoke an equitable cause of action that Congress has only implicitly allowed. See Hernandez, 140 S. Ct. at 747; Lexmark, 572 U.S. at 129. It would also lead to “absurd” results, as it would allow suits by any plaintiff with a traceable, but entirely unrelated, injury—such as a grocer whose supplies are affected by the construction of a barrier on farming land in a different state. Thompson, 562 U.S. at 176-78 (explaining “absurd consequences” if a shareholder could sue a company under antidiscrimination laws for the unlawful termination of a valuable employee so long as the shareholder’s stock value had decreased as a result). Plaintiffs ignore Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.), in which the Supreme Court—confronted with the same argument that the zone-of-interests requirement “has no application in an ultra vires challenge” “outside of the APA framework,” Sierra Club v. Trump, 2019 WL 2715422, at *3 (N.D. Cal. Jun. 28, 2019)— granted a stay pending appeal, expressly noting that, “[a]mong the reasons” a stay was warranted, the government had “made a sufficient showing” that the plaintiffs there lacked a cause of action because they were outside the zone-of-interests of the statute they sought to enforce. Sierra Club, 140 S. Ct. at 1. 16 Case: 19-51144 Document: 00515396947 Page: 27 Date Filed: 04/27/2020 2. Plaintiffs alternatively and mistakenly contend that they fall within the zone of interests of the “structural” protections of the “Appropriations Clause.” Br. 32-33. First, as defendants have already explained, plaintiffs brought an APA claim, alleging that defendants’ expenditures were “in excess of statutory jurisdiction” and “not in accordance with law” because defendants violated the CAA. ROA.279-80 (quoting 5 U.S.C. § 706). And plaintiffs’ attempt to recast their statutory claim as a constitutional one is flatly contrary to Dalton v. Spector, where the Supreme Court explained that not “every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” 511 U.S. 462, 472 (1994). Rather, the Supreme Court has carefully “distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority.” Id. (collecting cases). The Constitution is implicated if executive officers rely on it as an independent source of authority to act or if the officers rely on a statute that itself violates the Constitution. See id. at 473 & n.5. But claims alleging simply than an official has “exceeded his statutory authority are not ‘constitutional’ claims.” Id. at 473. Plaintiffs’ dispute involves “only issues of statutory interpretation,” and thus “no constitutional question whatever is raised.” Id. at 473 & n.6 (quotation marks omitted). Second, even if plaintiffs’ challenge could be viewed as resting in part on the Appropriations Clause, the CAA would still prescribe the relevant zone of interests that plaintiffs must satisfy. The zone-of-interests requirement must be applied “by 17 Case: 19-51144 Document: 00515396947 Page: 28 Date Filed: 04/27/2020 reference to the particular provision of law upon which the plaintiff relies.” Bennett, 520 U.S. at 175-176. Here, plaintiffs rely on the CAA’s bare appropriation of $1.375 billion to DHS, as well as Section 739, but plaintiffs’ interests fall outside the zone of interests of those provisions, as the government has explained. See Opening Br. at 2425; supra p. 12. Plaintiffs suggest that, because Congress “appropriates money to benefit the public,” these plaintiffs (or presumably any plaintiff that allegedly has Article III injury) can sue to enforce “statutory provisions” that “implement[]” appropriations. Br. 32-34. But that would lead to precisely the “absurd consequences” the zone-ofinterests requirement is intended to prevent. Thompson, 562 U.S. at 176-78. Unsurprisingly, that proposition is not remotely supported by the cases upon which plaintiffs rely. Indeed, in Scheduled Airlines Traffic Offices, Inc. v. Department of Defense, the D.C. Circuit found that it was “quite clear[]” that a statute regulating when agencies must deposit money into the Treasury was not intended to benefit “third parties.” 87 F.3d 1356, 1359-60 (D.C. Cir. 1996). The Court concluded the particular plaintiff there fell within the zone-of-interests only because the plaintiff asserted interests that were “sufficiently congruent” with Treasury’s interests that the statute sought to protect, and the provision that the plaintiff sought to enforce contained clear “statutory demarcation[s]” that limited what the plaintiff could seek if permitted to bring suit. Id. at 1360. That hardly supports plaintiffs’ right to sue here, where they seek to enforce generic appropriations language and purportedly implied limitations in 18 Case: 19-51144 Document: 00515396947 Page: 29 Date Filed: 04/27/2020 Congress’s bare appropriation of funds to DHS, based on their attenuated reputational, indirect economic, and organizational interests in how DoD has spent its funds. The breadth of plaintiffs’ argument is made clear by their suggestion that they can sue simply because they are a municipality and an organization “composed of individuals whose liberty is protected by structural constitutional provisions including the Appropriations Clause,” and they, and presumably any other such plaintiffs, can sue to “vindicate[]” those structural protections. Br. 34. Here again, none of the cases plaintiffs cite support such a remarkable proposition. In Collins v. Mnuchin, this Court concluded only that a constitutional claim was “direct” (as opposed to “derivative”) and thus was not barred by a succession provision. 938 F.3d 553, 587 (5th Cir. 2019). And in Bond v. United States, 564 U.S. 211 (2011), the plaintiff was a criminal defendant who claimed that Congress exceeded its enumerated powers in criminalizing Bond’s own conduct. Id. at 214. That criminal defendant undoubtedly satisfied the zone-of-interests requirement to bring such a claim, and Bond does not suggest that such a claim likewise could have been brought by any third party that could demonstrate any fairly traceable Article III harm—e.g., Bond’s employer undoubtedly could not have sued to prevent her incarceration to avoid economic injuries from the loss of an employee. To the contrary, Bond itself emphasized that, in addition to Article III standing requirements, “[a]n individual who challenges federal action on [federalism] grounds” is also subject to “prudential rules[] applicable to all 19 Case: 19-51144 Document: 00515396947 Page: 30 Date Filed: 04/27/2020 litigants and claims,” Id. at 225, and the zone-of-interests requirement was, of course, described as a “prudential” rule at the time, see Lexmark, 572 U.S. at 127-28.1 3. Nor should this Court hold that the government forfeited its zone-ofinterests objection to plaintiffs’ reliance on the CAA. Contra Br. 32. The government has insisted at every stage of this litigation that plaintiffs must satisfy the zone-ofinterest requirement. See ROA.1451-52; ROA.1726; ROA.2166; ROA.2224. Although the government’s zone-of-interest arguments at the summary-judgment stage were focused on Sections 2808, 284, and 8005, plaintiffs never argued below that the government forfeited a zone-of-interests argument with respect to the CAA, and the district court “passed upon” the issue below, Glass v. Paxton, 900 F.3d 233, 243 (5th Cir. 2018). Indeed, the district court concluded it did not need to address any zone-of-interest standard because it held that the requirement does not apply to equitable causes of action. ROA.2120-21 n.1. That conclusion conflicts with Supreme Court precedent and basic separation-of-powers principles. This Court thus can and should reverse the district court’s erroneous zone-of-interest holding, and make clear that plaintiffs are not proper parties to enforce the statutory provisions they invoke. Plaintiffs suggest that Congress directly appropriated $20 million for the project at Fort Bliss. Br. 33-34. Funds for that proposed project, however, were expected to come from a 2018 discretionary lump-sum appropriation to DoD for defense access road construction generally. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. J, § 131, 132 Stat. 805. 20 1 Case: 19-51144 C. Document: 00515396947 Page: 31 Date Filed: 04/27/2020 Congress’s Appropriation to DHS Does Not Preclude DoD From Using its Appropriated Funds Pursuant to Its Own Statutory Grants of Authority As the government explained (Opening Br. 27-34), even if plaintiffs could establish a right to sue, the district court erred on the merits because the CAA does not prohibit DoD’s Section 2808 construction. 1. Plaintiffs repeat the district court’s erroneous conclusion that the CAA’s appropriation to DHS impliedly prohibited DoD from using its own appropriated funds for military construction projects. See Br. 36-40. Plaintiffs fail to come to terms with the plain text of the CAA, which appropriated funds to a specific account within DHS’s budget, and specified how the funds in that DHS account were to be used. See CAA, Pub. L. No. 116-6, div. A, 133 Stat. 13, 18, 28 (2019). That provision in no way precludes DoD from using its own separately appropriated funds to complete military construction projects pursuant to DoD’s own statutory authority under Section 2808 Unable to rely on the actual text of the CAA, plaintiffs instead (Br. 37) point to the “debate[]” over border wall funding leading up to the CAA. But “[a]n agency’s discretion to spend appropriated funds is cabined only by the text of the appropriation,” not by “legislative history.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 200 (2012) (quotation marks omitted). Regardless of the political debate that occurred prior to the enactment of the CAA, Congress did not prohibit DoD from using its own appropriations and statutory authorities to complete border-barrier projects. Had Congress wanted to enact such a prohibition, it knew how to do so. 21 Case: 19-51144 Document: 00515396947 Page: 32 Date Filed: 04/27/2020 See, e.g., CAA, § 231, 133 Stat. at 28 (prohibiting any border barrier construction under “this Act or prior Acts” within five specified areas of the border). Plaintiffs’ reliance on the “specific-versus-the-general canon” is likewise unavailing. Br. 37-38. As the government explained (Opening Br. 30-31), that canon has no application here, where the CAA’s appropriation to DHS does not conflict with DoD’s use of its own separate appropriations and statutory authority. The D.C. Circuit’s opinion in Nevada v. Department of Energy, 400 F.3d 9 (D.C. Cir. 2005), is not to the contrary. That case involved a single appropriations statute to the Department of Energy, in which Congress appropriated funds to a general “Nuclear Waste Fund” for the agency to finance states’ activities pursuant to the Nuclear Waste Policy Act, and separately, in that “very same bill,” Congress appropriated $1 million for the agency to finance Nevada’s activities pursuant to the Nuclear Waste Policy Act. Id. at 11-12. Interpreting the text of the statute, the Court held that Congress intended for the Department of Energy to fund Nevada’s statutory activities using only the $1 million that was specifically appropriated for Nevada, rather than the Department’s more general “Nuclear Waste Fund” appropriation. Id. at 16-17. The D.C. Circuit in Nevada was thus interpreting a single appropriations statute to a single agency, which contained two provisions relating to how that agency was to fund states’ activities under one federal statute that that agency administered. In that circumstance, the Court recognized that Congress intended the agency to use the more specific appropriation, rather than a more general appropriation that could also 22 Case: 19-51144 Document: 00515396947 Page: 33 Date Filed: 04/27/2020 have applied. That is consistent with the GAO’s guidance. See U.S. Gov’t Accountability Office, 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 appropriation broad enough to cover the same item, . . . [i]t must use the specific appropriation.”). The situation in Nevada is nothing like the circumstance here. Congress appropriated funds to an account within DHS’s budget for DHS to complete borderbarrier construction pursuant to its statutory authority, and Congress separately appropriated funds to DoD for DoD to use pursuant to its own separate and distinct statutory authorities, including its longstanding authority to perform certain militaryconstruction projects to support the use of the armed forces. Congress’s appropriation to DHS did not impliedly override DoD’s ability to use its own distinct authorities and separate appropriations, where their respective statutory authorities are entirely consistent with one another. 2. Section 739 of the CAA also does not prohibit DoD’s use of its own appropriations to complete projects under its statutory authorities. That provision, which has been included in appropriations statutes since 2014, prohibits agencies from using appropriated funds to “increase, eliminate, or reduce funding for a program, project, or activity . . . until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to” a reprogramming or transfer provision. 133 Stat. at 197 (emphasis added). As the government has 23 Case: 19-51144 Document: 00515396947 Page: 34 Date Filed: 04/27/2020 consistently explained—and thus has not asserted “for the first time on appeal,” Br. 41—the phrase “program, project, or activity” in the context of an appropriations statute “refer[s] to a particular item funded in an appropriations act for a particular agency,” ROA.1736; see ROA.2166-67; ROA.2225; see also U.S. Gov’t Accountability Office, GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process 80 (2005), https://go.usa.gov/xvErP (defining “program, project, or activity” as an “element within a budget account”). The CAA, like other appropriations statutes, uses “programs, projects, and activities” in this specific manner. See Opening Br. 33-34 (collecting citations). Plaintiffs, echoing the district court, urge that the term “project” in Section 739 should be read in accordance with what they contend is its “ordinary meaning,” rather than as a term of art familiar to appropriations law. Br. 41. But this disregards the Supreme Court’s admonition that the words Congress has enacted “must be read in their context and with a view to their place in the overall statutory scheme.” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019). Contrary to plaintiffs’ argument (Br. 42-43), the fact that Section 739 appears in a section of the CAA entitled “General Provisions--Government Wide” does not change this. The government does not dispute that Section 739 applies to all agencies, but that application in no way suggests that the phrase “program, project, or activities” in Section 739 has a different definition than its well-established meaning in the appropriations law context. See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 24 Case: 19-51144 Document: 00515396947 Page: 35 Date Filed: 04/27/2020 (1991) (explaining that when Congress uses a “term of art,” Congress is assumed to have “intended [the term] to have its established meaning” in that context). None of the construction projects that DoD is undertaking pursuant to its own statutory authority increases funding for an element within any budget account that belongs to DHS (or any other agency). 3. Plaintiffs’ alternative arguments for upholding the district court’s injunction are without merit. a. Plaintiffs primarily contend that the President’s proclamation of national emergency violates the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified at 50 U.S.C. §§ 1601-1651). That statute authorizes the President to “declare [a] national emergency” with respect to statutes “authorizing the exercise, during the period of a national emergency, of any special or extraordinary power.” 50 U.S.C. § 1621(a). Plaintiffs ask this Court to second-guess the President’s decision to declare a national emergency (Br. 41-45), but “federal courts have historically declined to review the essentially political questions surrounding the declaration or continuance of a national emergency.” United States v. Amirnazmi, 645 F.3d 564, 581 (3d Cir. 2011); accord Soudavar v. Bush, 46 F. App’x 731 (5th Cir. 2002) (per curiam) (affirming dismissal, as a “nonjusticiable political question,” challenge to executive orders imposing national emergency sanctions). Plaintiffs do not cite—and defendants are 25 Case: 19-51144 Document: 00515396947 Page: 36 Date Filed: 04/27/2020 not aware of—any case in which a federal court has evaluated the merits of a presidential declaration of a national emergency. Rather, as courts have recognized, the “NEA places the onus on Congress” to terminate a President’s emergency declaration if Congress makes the political judgment that the declaration is unwarranted or inappropriate. Amirnazmi, 645 F.3d at 581; see Beacon Prods. Corp. v. Reagan, 814 F.2d 1, 4 (1st Cir. 1987) (Breyer, J.) (“Congress intended to impose upon itself the burden of acting affirmatively to end an emergency [declared under the NEA].”). Under the NEA, Congress has authority to terminate a national emergency by enacting into law a “joint resolution.” 50 U.S.C. § 1622(a)(1). The Executive Branch must make extensive reports to Congress when the President declares a national emergency, see id. § 1641, and the NEA explicitly requires Congress to meet “[n]ot later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, . . . to consider a vote on a joint resolution to determine whether that emergency shall be terminated,” id. § 1622(b). The NEA does not give private parties any role in the statutory process, let alone a role that could be enforced in court.2 Amicus briefs filed on behalf of plaintiffs only support this. See Former Rep. Members of Congress Amicus Br. at 10-11 (explaining that the NEA ”subjects all emergency declarations to Congressional oversight”); Brennan Center Amicus Br. at 1-2, 12 (explaining that the NEA was intended to “facilitate congressional oversight with respect to the presidents’ use of emergency powers”). 26 2 Case: 19-51144 Document: 00515396947 Page: 37 Date Filed: 04/27/2020 Notably, Congress has attempted on more than one occasion to override the President’s February 2019 Proclamation of a national emergency. Each time, however, that effort has failed to garner enough support to override the President’s veto. See Summary, H.J. Res. 46, 116th Cong. (2019), https://go.usa.gov/xpsBW; Summary, S.J. Res. 54, 116th Cong. (2019), https://go.usa.gov/xpsB8. This Court should reject plaintiffs’ attempts to use the Judiciary to enforce plaintiffs’ own preferred meaning of what constitutes an emergency, where the political process that Congress established for reviewing a national emergency has thus far declined to reach the outcome that plaintiffs desire. Plaintiffs’ argument that the NEA poses non-delegation doctrine concerns (Br. 41) is meritless. Plaintiffs are incorrect that “the only limit” on the President’s authority to declare a national emergency is “the President’s own imagination.” Br. 52-53. To begin, the term “emergency” is even more of an intelligible principle than many other standards the Supreme Court has upheld under the non-delegation doctrine. See, e.g., Whitman v. American Trucking Assocs., 531 U.S. 457, 474-75 (2001) (“[W]e have found an ‘intelligible principle’ in various statutes authorizing regulation in the ‘public interest.’”). Furthermore, as set forth above, the Executive Branch must satisfy numerous reporting requirements when a national emergency is declared; Congress must meet to “consider a vote” on whether to terminate the President’s declaration; and Congress can terminate the declaration through the enactment of a “joint resolution.” See 50 U.S.C. § 1622. That congressional system of review is a 27 Case: 19-51144 Document: 00515396947 Page: 38 Date Filed: 04/27/2020 meaningful “limitation[] on the President’s power,” as this Court has recognized. See United States v. Mirza, 454 F. App’x 249, 256 (5th Cir. 2011). Moreover, the NEA, on its own, does not “enlarge or add to Executive power.” See Report of the Committee on Government Operations: National Emergencies Act, S. Rep. No. 94-1168, at 3 (1976). Instead, the NEA is a procedural statute that was enacted by “Congress to establish clear procedures and safeguards for the exercise by the President of emergency powers conferred upon him by other statutes.” Id. (emphasis added). Thus, when the President declares any national emergency pursuant to the NEA, the President must “specif[y] the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631. Here, as discussed, the President’s proclamation of national emergency made available Section 2808 to be used at the discretion of the Secretary of Defense in accordance with that statute’s terms. And Section 2808 certainly sets forth “intelligible principle[s] to which the [Secretary of Defense] is directed to conform.” Mistretta v. United States, 488 U.S. 361, 372 (1989) (quotation marks omitted); see infra p. 30. b. Plaintiffs half-heartedly contend (Br. 57-58) that the district court’s injunction can be sustained because defendants’ construction does not comply with Section 2808. Br. 57-58. That is wrong. 28 Case: 19-51144 Document: 00515396947 Page: 39 Date Filed: 04/27/2020 As an initial matter, plaintiffs’ purported indirect economic, reputational, and organizational interests are not within the zone of interests of Section 2808.3 Congress enacted Section 2808 to facilitate “military construction” in the event of a declaration of national emergency requiring the use of the armed forces, and a determination that, in the judgment of the Secretary of Defense, the construction is “necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). Section 2808 defers to the Secretary’s judgment to identify the “military construction projects . . . that are necessary to support such use of the armed forces,” and, based on that judgment, permits the Secretary to shift unobligated military-construction funds appropriated for other projects and instead to use them for projects that are “not otherwise authorized by law.” Id. Underscoring the broad discretion vested in the Secretary, Section 2808 provides that the military construction it authorizes can be undertaken “without regard to any other provision of law.” Id. The scope of Section 2808 and its statutory purpose demonstrate that its requirements are not intended to protect parties like El Paso, who assert that military construction (occurring over 100 miles away) has indirectly caused a general decline in its municipal tax revenues or purportedly injured its reputation, or organizations like BNHR that allege they have diverted resources to “counsel” members about construction-related concerns. To the extent plaintiffs contend they do not need to satisfy the zone-of-interests requirement with respect to Section 2808, that argument fails for the same reasons as set forth above with respect to the CAA. See supra pp. 12-20. 29 3 Case: 19-51144 Document: 00515396947 Page: 40 Date Filed: 04/27/2020 Section 2808 does not even “arguably” protect such attenuated interests. Bennett, 520 U.S. at 162. In any event, the construction here complies with Section 2808, which allows the Secretary to undertake “military construction” in the event of a national emergency declaration, and defines “military construction” as construction “carried out with respect to” a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. § 2801(a), (c)(4). Two Section 2808 projects will be built on the Goldwater Range, an Air Force and Marine Corps bombing range. ROA.1789-90. The remaining nine will be built on land under the jurisdiction of the Secretary of the Army. See ROA.1790. As plaintiffs acknowledge, DoD will acquire the land, which will be assigned to Fort Bliss. See Br. 58. All of the Section 2808 projects will thus take place on land “under the jurisdiction of the Secretary of a military department.” Id. § 2801(a), (c)(4). Although plaintiffs suggest that military construction under Section 2808 must be on land that has (for some unspecified and indeterminate amount of time) “previously” been a military site, see Br. 58, nothing in the text of the statute imposes such a restriction. D. The District Court Abused Its Discretion By Granting an Injunction Plaintiffs contend that the district court did not err in “enjoining Defendants’ [Section] 2808 expenditures after finding them unlawful.” Br. 59. But “[a]n injunction is a matter of equitable discretion” that “does not follow from success on 30 Case: 19-51144 Document: 00515396947 Page: 41 Date Filed: 04/27/2020 the merits as a matter of course.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 32 (2008). Plaintiffs assert that Winter was only “a preliminary-injunction case” (Br. 60) but the Supreme Court in Winter found that the district court abused its discretion in granting a preliminary injunction, and explained in an entire section of its opinion that its “analysis of the propriety of preliminary relief is applicable to any permanent injunction as well.” 555 U.S. at 33. Indeed, the Court made clear that “it would be an abuse of discretion” if the district court were to “enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction.” Id. In all circumstances, “in assessing the propriety of any injunctive relief, preliminary or permanent,” the court must consider “the balance of equities and consideration of the public interest.” Id. Here, as defendants’ opening brief established (pp. 35-36), the injunction directly inhibits the government’s efforts 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), which plaintiffs agree is a “serious concern,” Br. 59. By contrast, 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 a defense access roads project at Fort Bliss; and BNHR’s expenditures are voluntary and unrelated to any actual Section 2808 construction. See Opening Br. 15-24; see supra pp. 5-11. 31 Case: 19-51144 Document: 00515396947 Page: 42 Date Filed: 04/27/2020 As in Winter, plaintiffs’ insubstantial harms cannot support an injunction against military activity. The fact that the Winter plaintiffs argued only that “the Navy must prepare an [environmental impact statement], not that it must cease sonar training,” Br. 60, does not alter the equitable balance here, particularly given that the district court did not even conclude that defendants violated Section 2808, but rather enforced what it perceived to be an implicit budgetary limitation in the CAA. Even if such a limitation exists (which it does not), that would not compel the issuance of an injunction, as Congress in the CAA was not balancing defendants’ interests against the harms asserted by plaintiffs, as the district court was required to do. Winter, 555 U.S. at 24. Finally, the government explained why, 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. See Opening Br. 38-39. Plaintiffs assert that the scope of the district court’s injunction was appropriate because they contend that “all of Defendants’ [Section] 2808 expenditures are unlawful.” See Br. 61. But that conflates the scope of their legal claim with the scope of the remedy to which they are entitled. Article III requires that injunctive relief “be tailored to redress the plaintiff’s particular injury.” Gill, 138 S. Ct. at 1934 (quotation marks omitted); see supra pp. 7-8. Likewise, under equitable principles, “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The 32 Case: 19-51144 Document: 00515396947 Page: 43 Date Filed: 04/27/2020 district court’s broad injunction directly inhibits the government’s border-security and drug-interdiction efforts, whereas the $20 million deferred from Fort Bliss is the only aspect of Section 2808 construction to which plaintiffs have even an arguable connection. At an absolute minimum, it was an abuse of discretion for the district court to issue an injunction prohibiting the expenditure of any funds for Section 2808 construction, as opposed to only the funds deferred from Fort Bliss. See Department of Homeland Sec. v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., concurring in grant of stay). II. The District Court Did Not Err in Refusing to Enjoin DoD’s Section 284 Counter-Drug Construction Plaintiffs’ cross-appeal challenges the district court’s denial of their request for an injunction to prohibit defendants’ border barrier construction under Section 284. Plaintiffs do not contend that DoD’s construction violates the terms of Section 284, which expressly authorizes DoD to “provide support for the counterdrug activities . . . of any other department or agency,” if “such support is requested,” including through the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284.4 DHS requested additional Section 284 support in January 2020, and DoD approved construction and funding for 31 segments within 13 project areas. See ECF 146, at 1. These newly authorized projects will be funded with funds appropriated to DoD in fiscal year 2020, and are outside the scope of plaintiffs’ cross-appeal and their 4 33 Case: 19-51144 Document: 00515396947 Page: 44 Date Filed: 04/27/2020 Plaintiffs instead repeat their argument that Congress’s appropriation of $1.375 billion to DHS impliedly precludes DoD from building border barriers using its own appropriations and statutory authorities. Plaintiffs further argue that DoD’s counterdrug construction is unlawful because DoD exceeded the limitations on its authority to internally transfer appropriated funds among its own budget accounts pursuant to Section 8005 of its annual appropriations statute. See Department of Defense Appropriations Act, 2019 (DoD Appropriations Act), Pub. L. No. 115-245, div. A, tit. VIII, § 8005, 132 Stat. 2981, 2999 (2018).5 Plaintiffs are wrong on both counts. Moreover, plaintiffs lack a right to sue because they do not have Article III standing and they fall outside the zone of interests of the statutory limitations they seek to enforce. And any injunction would be improper because of the significant government and public interests in drug interdiction, as compared to the plaintiffs’ attenuated harms. Notably, as the district court acknowledged, ROA.2202, ROA.2210, it was an injunction against Section 284 construction that the Supreme Court stayed in Sierra Club, 140 S. Ct. 1 (2019). complaint, which challenges only defendants’ fiscal year 2019 decisions and use of funds appropriated in the 2019 fiscal year. See ROA.277-81. 5 Defendants also transferred funds pursuant to Section 9002 of DoD’s appropriations statute, which is an authority that is “in addition to any other transfer authority” but “subject to the same terms and conditions as the authority provided in [S]ection 8005.” DoD Appropriations Act § 9002, 132 Stat. 3042. For simplicity, because Section 8005 and 9002 are both subject to Section 8005’s substantive requirements, this brief refers to these authorities collectively as Section 8005, as plaintiffs also do in their brief. 34 Case: 19-51144 A. Document: 00515396947 Page: 45 Date Filed: 04/27/2020 Plaintiffs Lack Article III Standing Plaintiffs’ cross-appeal fails at the threshold because they lack Article III standing. As plaintiffs acknowledge, the closest Section 284 project that plaintiffs challenge is located in “Doña Ana County, New Mexico,” which is 15 miles away from downtown El Paso. Br. 62; see ROA.1505. That construction project will replace existing vehicle barriers with new pedestrian fencing in order to better respond to transnational criminal organizations, which have “adapted their tactics” to evade existing vehicle barriers. ROA.1504-05. Neither El Paso nor BNHR has any Article III injury from that construction or any of the other Section 284 projects they challenge. 1. El Paso contends that it has standing because the replacement of existing border barriers in New Mexico is harming El Paso’s economy. Br. 62. The County’s declarations, however, provide no evidence to support that assertion. See ROA.92627; ROA.917-18. At most, El Paso’s declarants speculate that border-barrier “construction in New Mexico” will affect tourism and business development in El Paso because that border-barrier construction will cause “uncertainty,” ROA.926-27, and “fears,” ROA.918, among tourists and investors. But that conclusory speculation, which is itself premised on the speculative fears of third parties, in no way demonstrates that El Paso is suffering any “certainly impending” economic injury from borderbarrier construction to replace existing barriers on federal land, in a different State, near official points of entry. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-14 35 Case: 19-51144 Document: 00515396947 Page: 46 Date Filed: 04/27/2020 (2013) (refusing to find standing based on speculation and noting in particular the “usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors”). El Paso’s speculative and conclusory allegations are insufficient to establish its standing even under the out-of-circuit cases plaintiffs cite. In City of Sausalito v. O’Neill, the Ninth Circuit concluded that a city had standing to bring an environmental challenge to a redevelopment project on nearby federal land because, among other consequences to the city, the redevelopment would “unleash” “2,700 daily visitors” and lead to “congested streets, parks, parking lots,” and “impaired air quality” throughout the city, damaging the city’s environment and infrastructure— consequences that an environmental impact statement prepared by the government “acknowledge[d],” and were supported by detailed declarations submitted by the city. 386 F.3d 1186, 1198, 1199 (9th Cir. 2004) (quotation marks omitted). Neither that case nor City of Olmsted Falls (see supra p. 6) supports El Paso’s standing here, where El Paso does not rely on any harm to its environment, and offers only speculation and assumptions that updating existing barriers 15 miles away, in a different State, will injure El Paso’s economy because that construction will produce vague “fears” and “uncertainty” among third parties. See ROA.918. Those conclusory assumptions fall far short of what is needed to establish El Paso’s standing at the summary-judgment stage. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 36 Case: 19-51144 Document: 00515396947 Page: 47 Date Filed: 04/27/2020 2. BNHR likewise lacks standing. BNHR contends that it has standing to challenge defendants’ construction under Section 284 “[f]or the same reasons BNHR has standing to challenge Defendants’ [Section] 2808 expenditures.” Br. 63. As defendants have explained, however, BNHR has failed to establish that defendants’ construction of border barriers has harmed BNHR’s organizational mission, and thereby caused a drain on its resources. See Opening Br. 21-24; see supra pp. 10-11. To the extent BNHR links its organizational expenditures to defendants’ Section 284 construction at all (as opposed to entirely unrelated events, see, e.g., ROA.939), BNHR asserts that defendants’ construction threatens “[t]raffic slowdowns,” “noise,” and “blight.” ROA.940-41. Here again, however, BNHR has failed to explain how its members’ concern over increased traffic demonstrably impairs BNHR’s organizational mission of promoting immigration reform. See ROA.931. B. Plaintiffs’ Interests Fall Outside the Zone of Interests of the Statutory Limitations They Invoke Even if plaintiffs could establish their Article III standing, plaintiffs lack a right to sue because their asserted interests fall outside the zone of interests of the alleged statutory limitations they seek to enforce. 1. As with defendants’ Section 2808 construction, plaintiffs contend that DoD’s Section 284 construction violates the CAA and Section 739. See Br. 64. As we have explained, plaintiffs’ asserted indirect economic and organizational interests fall 37 Case: 19-51144 Document: 00515396947 Page: 48 Date Filed: 04/27/2020 outside the zone of interests protected by the CAA provisions they invoke. See Opening Br. 24-27; supra pp. 11-20 2. Plaintiffs also seek to enforce limitations in Section 8005 of the DoD Appropriations Act. See Br. 64. But as discussed below, that provision governs DoD’s internal transfer of funds, and has nothing to do with any effect that the funded projects (authorized by Section 284) may have on neighboring localities or the organizational interests plaintiffs assert here. a. Congress finalizes DoD’s budget through a collaborative process during which DoD requests funding from Congress for each of its appropriations accounts by describing amounts needed to execute programs, projects, and activities within its accounts; these requests are considered by committees in the House and Senate. The amounts are then reconciled by conference committee, and the details are set forth in a conference report. See generally H.R. Rep. No. 115-952 (2018) (628-page conference report on DoD’s appropriation for fiscal year 2019). In its annual Appropriations Act, Congress provides DoD the funds approved through this process. The total defense budget is divided into several different appropriations accounts under which DoD may fund numerous programs, projects, and activities that fit within that account. See DoD Appropriations Act, 132 Stat. at 2982; see also H.R. Rep. No. 93-662, at 15 (1973) (explaining that DoD’s appropriations are not “written on a line item basis”). 38 Case: 19-51144 Document: 00515396947 Page: 49 Date Filed: 04/27/2020 Because DoD’s budget projections are based upon predictions, which inevitably vary from the circumstances that actually confront DoD in any fiscal year, Congress has long provided in DoD’s annual appropriations statutes the authority for DoD to move “funds between appropriation[]” accounts as DoD’s needs and priorities change. U.S. Gov’t Accountability Office, Principles of Federal Appropriations Law, ch. 2, pt. B, § 7, at 2-38 (4th ed. Rev. 2016), https://go.usa.gov/xvQ3Q (defining transfer); see also id. (explaining the “legitimate need for a certain amount of flexibility to deviate from [an agency’s] budget estimates”). For fiscal year 2019, Congress once again included such a transfer provision in Section 8005 of DoD’s annual appropriations act. Section 8005 authorizes the Secretary of Defense, “[u]pon determination . . . that such action is necessary in the national interest,” to transfer up to $4 billion from certain “appropriations or funds or any subdivision thereof, to be merged with and to be available for the same purposes . . . as the appropriation or fund to which transferred.” See DoD Appropriations Act, § 8005, 132 Stat. at 2999. Section 8005 includes limitations on DoD’s transfer authority. See H.R. Rep. No. 93-662, at 16. Congress observed in 1973 that “[n]ot frequently, but on some occasions,” DoD “ha[d] requested that funds which ha[d] been specifically deleted in the legislative process be restored through the reprogramming process.” Id. Moreover, DoD had, “on occasion, requested permission to reprogram” funds from high-priority projects into “programs which are of obviously lower priority according 39 Case: 19-51144 Document: 00515396947 Page: 50 Date Filed: 04/27/2020 to military requirements.” Id. Congress therefore sought to “tighten congressional control of the reprogramming process.” Id. Section 8005 provides, in particular, that funds may not be transferred under that provision “unless for higher priority items, based on unforeseen military requirements,” and “in no case where the item for which funds are requested has been denied by the Congress.” § 8005. Section 8005 requires the Secretary to “notify the Congress promptly of all transfers made pursuant to this authority or any other authority in this Act.” Id. b. Plaintiffs are not proper parties to enforce the limitations in Section 8005. Nothing in the text of Section 8005 suggests that Congress even arguably intended to permit enforcement of the statute’s limitations by parties who, like El Paso, assert that a transfer would indirectly result in harm to local business and tourism interests based on how transferred funds are ultimately spent. See ROA.917-18. Nor does Section 8005 suggest that Congress even arguably intended to permit suits by organizations such as BNHR who allege that the downstream use of transferred funds caused it to spend money to combat its members’ concerns with “[t]raffic slowdowns” and “blight.” ROA.941. Section 8005 does not regulate or limit DoD’s use of transferred funds, nor does it require the Secretary of Defense to consider the interests of organizations or neighboring localities who may be indirectly affected by the downstream use of funds transferred. To the contrary, it empowers the Secretary to transfer funds among appropriations accounts in order to fund any type of activities that Congress has 40 Case: 19-51144 Document: 00515396947 Page: 51 Date Filed: 04/27/2020 statutorily authorized DoD to perform. Section 8005 requires the Secretary to notify only Congress when he or she exercises that authority. See § 8005. And Congress conditioned the Secretary’s transfer authority on judgments about military and national security affairs that are within the Secretary’s expertise and that private parties and courts are ill-suited to second guess—e.g., that the transfer is “necessary” for the “national interest” and for a “higher priority” item of defense spending. Id.; see Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (cautioning that courts should be “reluctant to intrude upon the authority of the Executive in military and national security affairs”). If Congress disagrees with a particular transfer, it has the necessary political tools to address the problem itself, including by enacting new legislation to prohibit DoD from spending funds in a particular manner, reducing future appropriations to DoD, or restricting or eliminating entirely DoD’s transfer authority. Indeed, Section 8005’s legislative history confirms that the provision is principally a means of congressional oversight. When Congress first enacted Section 8005 in its current form, a committee report explained that legislators imposed conditions on it to “tighten congressional control of the reprogramming process” in light of prior experiences with DoD in the budgeting process. H.R. Rep. No. 93-662, at 16-17 (emphasis added). There is no suggestion in the text or context of the statute that it was intended to permit litigants to seek judicial enforcement to protect interests akin to those raised by plaintiffs here. Even assuming the limits on the Secretary’s transfer authority might “arguably protect[]” some private “economic interests” of parties that 41 Case: 19-51144 Document: 00515396947 Page: 52 Date Filed: 04/27/2020 “would have been entitled to the funds but for [DoD’s] transfer[s],” Sierra Club v. Trump, 929 F.3d 670, 715 (9th Cir. 2019) (N.R. Smith, J., dissenting), Section 8005 certainly does not protect plaintiffs’ attenuated interests here. The Supreme Court in Sierra Club, 140 S. Ct. at 1, confirmed that conclusion when it granted a stay of a California district court injunction that prohibited Section 284 construction based on the limitations in Section 8005. The Supreme Court explained that “[a]mong the reasons” a stay was warranted was that “the Government ha[d] made a sufficient showing,” that the plaintiffs there, who asserted recreational, aesthetic, and environmental interests in the land upon which the construction would be built, “have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id. at 1. That decision, made following the government’s presentation of the zone-of-interests argument set out above, strongly suggests that plaintiffs here—who assert injuries that are even further removed from the Section 284 construction that they challenge—likewise are not proper parties to enforce Section 8005’s limitations. Plaintiffs are neither “reasonable” nor “predictable” challengers to DoD’s internal transfers. Patchak, 567 U.S. at 227-28. Moreover, as defendants have explained, the Supreme Court’s grant of a stay in Sierra Club—in the face of the same arguments plaintiffs make here that the zone-ofinterests requirement does not apply to equitable causes of action outside of the APA—confirms that plaintiffs cannot avoid the zone-of-interests requirement by asserting an implied equitable cause of action. Thus, to the extent plaintiffs assert 42 Case: 19-51144 Document: 00515396947 Page: 53 Date Filed: 04/27/2020 they do not need to satisfy the zone-of-interests requirement with respect to Section 8005, that argument fails for the same reasons as set forth above with respect to plaintiffs’ CAA claim. Plaintiffs alleged that defendants’ transfers under Section 8005 violated the APA, ROA.280-81, to which the zone-of-interests requirement indisputably applies, and plaintiffs cannot evade that requirement by asserting an implied equitable claim or by invoking the Appropriations Clause. See supra pp. 11-20. C. DoD’s Transfers and Expenditures for Counter-Drug Construction Are Lawful Even if plaintiffs have a right to sue, DoD’s transfers and expenditures of funds for construction under Section 284 were lawful. 1. Plaintiffs raise the same arguments under the CAA (and Section 739 specifically) to challenge defendants’ Section 284 construction that they raised to challenge Section 2808 expenditures. See Br. 64. Those arguments fail for the same reasons we have explained. See Opening Brief 27-34; see supra pp. 21-25. 2. Plaintiffs further assert that DoD’s Section 284 construction is unlawful because that construction is being undertaken with funds that DoD transferred pursuant to its Section 8005 transfer authority. See Br. 64. Section 8005 plainly authorized DoD’s transfers, as the GAO itself has concluded. On February 25, 2019, DHS submitted a request to DoD, pursuant to Section 284, seeking DoD’s assistance “with the construction of fences[,] roads, and lighting” within eleven specified project areas, “to block drug-smuggling corridors across the 43 Case: 19-51144 Document: 00515396947 Page: 54 Date Filed: 04/27/2020 international boundary between the United States and Mexico.” ROA.1498; see ROA.1493; ROA.1497-1506. The request sought the replacement of existing vehicle barriers or dilapidated pedestrian fencing with new pedestrian fencing, the construction of new and improvement of existing patrol roads, and the installation of lighting. See ROA.1497-1506. The Acting Secretary of Defense approved six projects, in two phases. See, e.g., ROA.1508; ROA.1523-24. To ensure adequate funds to complete these projects, the Acting Secretary of Defense invoked his authority under Section 8005 and transferred a total of $2.5 billion of excess funds into the “Drug Interdiction and Counter-Drug Activities, Defense” appropriations account See, e.g., ROA.1511-1512; ROA.1515; ROA.1539. The Acting Secretary determined that the transfers satisfied the requirements of Section 8005. ROA.1511-12. The Acting Secretary’s determination was a valid exercise of his Section 8005 transfer authority, and his conclusions are amply supported by the record. Specifically, the transfers to provide DHS counter-drug support under Section 284 were for a “higher priority” item than the purposes for which the funds were originally appropriated, because the military personnel accounts and other DoD program funds from which the money was transferred were early or “excess to need” due to certain factors, including contract savings, unexpected strength reduction, and lower-than-expected funding requirements for a new retirement program. ROA.1511; see, e.g., ROA.1515-18; ROA.1539-46. The military requirements to be funded as a 44 Case: 19-51144 Document: 00515396947 Page: 55 Date Filed: 04/27/2020 result of the transfer were “unforeseen” because DoD’s budget was finalized in September 2018, see DoD Appropriations Act, 132 Stat. 2981, but DHS did not submit a request for DoD’s assistance under Section 284 until February 2019, see ROA.1497, several months later. DoD thus did not know “at the time of [its fiscal year 2019] budget request” that it would need to provide this particular support to DHS, as the Acting Secretary concluded. ROA.1512. And the particular item for which funds would be transferred—“[s]upport under Section 284 for construction of roads and fences and the installation of lighting” in the specific project areas requested by DHS—“has not been denied by Congress.” Id. Indeed, the GAO, a nonpartisan body within Congress itself, has agreed. When members of the Senate Appropriations Committee (Senators Leahy, Durbin, and Schatz) requested GAO’s legal opinion on DoD’s Section 8005 transfers, the GAO “conclude[d] that DOD’s transfer of amounts into its Drug Interdiction and Counter-Drug Activities, Defense, account for border fence construction was consistent with DOD’s statutorily enacted transfer authority.” ROA.2031. The GAO found, consistent with the Acting Secretary’s determinations, that the transfer was for an “unforeseen military requirement” because “the question under Section 8005 is whether [the requirement] was unforeseen at the time of [DoD’s] budget request,” and “while the President requested funds for border fencing as part of DHS’s budget,” DoD’s “authority to support DHS by constructing fences at the southern border under section 284 only materialized when DHS requested” DoD’s assistance 45 Case: 19-51144 Document: 00515396947 Page: 56 Date Filed: 04/27/2020 under Section 284 on February 25, 2019, and DoD “accepted that request.” ROA.2037-38. The GAO further concluded that the “item” had not been “denied by Congress” because DoD had not requested funds to provide Section 284 support to DHS, and there was thus “nothing for Congress to deny with respect to” DoD. ROA.2039-40. Plaintiffs’ contrary arguments are incorrect. Plaintiffs contend that DoD transferred funds for an “item” that had “been denied by the Congress,” and that the requirement was not “unforeseen,” because the President had requested appropriations for a “border wall” that Congress declined to provide in full when appropriating money to DHS in the CAA. Br. 65-66. Here again, however, plaintiffs interpret terms in an appropriations statute divorced from their “context” and their “place in the overall statutory scheme.” Contra Home Depot, 139 S. Ct. at 1748 (quotation marks omitted). Section 8005’s reference to an “item for which funds are requested” cannot be understood at the level of generality used by plaintiffs, to refer to a “border wall” generically and colloquially. Section 8005 is a provision in DoD’s annual appropriations statute, and the statutory term must be understood in that context. During the budgeting process, DoD requests funding from Congress for particular items, which may be as varied as personnel expenses, weapons systems, or other programs, and Congress appropriates funds in light of those requests. See, e.g., H.R. Rep. No. 115-952, at 452 (noting the House-, Senate-, and conference-committee 46 Case: 19-51144 Document: 00515396947 Page: 57 Date Filed: 04/27/2020 determinations regarding DoD’s requests for items to be funded by the appropriation for “Drug Interdiction and Counter-Drug Activities, Defense”). Section 8005 reflects Congress’s understanding that, after this process between Congress and DoD is complete, DoD must nevertheless have “financial flexibility during a given year” to respond to changing circumstances after its budget has been finalized. See H.R. Rep. No. 93-662, at 17; see also U.S. Gov’t Accountability Office, Principles of Fed. Appropriations Law, § 7, at 2-38 (“[A]gencies have a legitimate need for a certain amount of flexibility to deviate from their budget estimates.”). Section 8005’s limitations, first imposed in 1973, were intended to ensure that DoD would not transfer funds for items in its budget that “ha[d] been specifically deleted in the legislative process” between DoD and Congress, or “for projects or items which are of a lower priority from programs of higher priority which have been funded.” H.R. Rep. No. 93-662, at 16. Indeed, the phrase “item for which funds are requested” most naturally refers to an item within DoD’s own budget, as the statute does not permit anyone other than DoD to “request” that funds be transferred. See § 8005. That is confirmed by the first clause of Section 8005, which disallows transfers “unless for higher priority items.” Id. (emphasis added). To the extent DoD is using Section 8005 to transfer money “for” a “higher priority item,” the referenced “item” must be a specific project or program of DoD’s—after all, Section 8005 permits DoD to transfer funds only between internal DoD accounts. 47 Case: 19-51144 Document: 00515396947 Page: 58 Date Filed: 04/27/2020 Contrary to plaintiffs’ suggestion, therefore, the “item” Section 8005 refers to is not a generic “border wall,” untethered to any particular DoD authority or spending program. It can only be an “item” for which DoD could request funding during the process of negotiating the defense budget. Plaintiffs’ reading of “item” is not plausible, as it would interpret “item” to refer broadly and colloquially to any potential policy goal across the federal government, unmoored from any particular agency or appropriations process. That interpretation makes little sense for a term that appears in DoD’s annual appropriations statute, limits the circumstances under which DoD may transfer funds among otherwise-authorized projects, and was enacted in light of the historical experiences between Congress and DoD in the defense appropriations process. See H.R. Rep. No. 93-662 at 16-17 (explaining that Congress was including Section 8005 because, on occasion, DoD had “requested that funds which have been specifically deleted in the legislative process be restored through the reprogramming process,” but making clear this restriction would not “interfere with the basic requirements of the Department of Defense”). Here, as the Acting Secretary recognized in directing the transfer of funds, and as the GAO’s analysis confirmed, the relevant “item for which funds are requested” is DoD’s counter-narcotics support to DHS under Section 284 pursuant to DHS’s request. That “item” was not “denied by the Congress”: at no point in the budgeting process did Congress deny a DoD funding request for border-barrier construction under DoD’s counter-narcotics support line. Similarly, the requirement was 48 Case: 19-51144 Document: 00515396947 Page: 59 Date Filed: 04/27/2020 “unforeseen” because at the time that DoD made its budget requests to Congress and its budget was finalized in September 2018, DHS had not requested support for these Section 284 projects. DoD may undertake counter-drug support pursuant to Section 284 only upon receiving a request by another agency. See 10 U.S.C. § 284(a). As the Acting Secretary determined, the “need to provide support” to DHS for those proposed projects thus was “not known at the time of [DoD’s] FY 2019 budget request” in 2018. ROA.1511-12. Plaintiffs additionally assert that “unforeseen” in Section 8005 must refer only to circumstances such as an “unanticipated military threat,” or an “event” such as a “hurricane.” Br. 65. But nothing in Section 8005 imposes such a narrow requirement. Rather, as set forth above, Section 8005 is intended to give DoD “financial flexibility during a given year” to respond to changing circumstances after its budget has been finalized, see H.R. Rep. No. 93-662, at 17, and DoD did not receive a request from DHS for projects under Section 284 until several months after DoD’s budget process was over. That satisfies the statutory requirement, as the GAO agrees. See ROA.2037-38 (“[T]he question under Section 8005 is whether [the requirement] was unforeseen at the time of [DoD’s] budget request.”). Plaintiffs further contend that DoD’s transfer was not for a “military requirement” because the “border wall is a project to support DHS,” which is a “civilian agency.” Br. 66. But Congress itself expressly authorized DoD to support other agencies by enacting Section 284, and left no doubt that DoD’s military mission 49 Case: 19-51144 Document: 00515396947 Page: 60 Date Filed: 04/27/2020 includes the use of its military resources and expertise to assist non-military agencies in combatting drug-smuggling. See 10 U.S.C. § 284(a), (b)(3). When enacting Section 284, Congress expressed concern “about the threat posed by the production and trafficking of heroin, fentanyl (and precursor chemicals) and other illicit drugs,” and directed DoD “to ensure appropriate resources are allocated to efforts to combat this threat.” See, e.g., H.R. Rep. No. 114-840, at 1147 (2016). And the record includes ample support for the Acting Secretary’s determination that military support and resources were needed to respond to DHS’s request for assistance. See, e.g., ROA.1500 (explaining need for project in Yuma Sector of the border, citing the significant quantities of drug seizures and noting that “transnational criminal organizations [have] quickly adapted their tactics” to evade existing fencing). This Court should reject plaintiffs’ efforts to second-guess the judgment of Congress and DoD that the military may be, and here is, required to assist DHS’s counter-drug efforts. D. The District Court Did Not Abuse Its Discretion in Declining to Enjoin Section 284 Construction The district court correctly declined to issue an injunction to prohibit Section 284 construction. Again, “[a]n injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.” Winter, 555 U.S. at 32. The equities tilt sharply in the government’s favor. 50 Case: 19-51144 Document: 00515396947 Page: 61 Date Filed: 04/27/2020 As discussed, DHS requested specific Section 284 projects because of the high rates of drug smuggling between ports of entry in identified areas of the border. The record includes ample evidence of both the severity of the problem and the limited effectiveness of the existing barriers in those areas, which transnational criminal organizations have adjusted their tactics to evade. See, e.g., ROA.1500; 1501-02; 1504. An injunction would frustrate the government’s ability to stop the flow of drugs across the border and would harm the public’s interest. See National Treasury Emps. Union, 489 U.S. at 672. By contrast, plaintiffs assert only vague and attenuated harms from defendants’ construction, including that the construction will cause “uncertainty” and “fears” among tourists or business developers, or cause BNHR to spend organizational resources because of its members’ concerns with traffic, noise, and blight. ROA.92627; ROA.918-19. As discussed, those purported injuries do not satisfy even the threshold requirements of Article III, let alone constitute irreparable injuries that outweigh the real and immediate harm an injunction against Section 284 construction would pose to the government and the public interest. Plaintiffs’ interests are even less substantial than the plaintiffs’ observational and scientific interests in Winter, 555 U.S. at 26, 33. That any injunction would be unwarranted is confirmed by the Supreme Court’s stay in Sierra Club allowing the government’s Section 284 border-barrier construction to go forward pending appeal. Plaintiffs insist that the Court there 51 Case: 19-51144 Document: 00515396947 Page: 62 Date Filed: 04/27/2020 concluded only that the government had demonstrated a likelihood of success on the merits, Br. 67, but in granting a stay, the Supreme Court necessarily balanced the equities and considered the public interest, Nken v. Holder, 556 U.S. 418, 434 (2009) (stay factors include irreparable injury, the balance of hardships, and the public interest), and concluded that the balance of equities tipped in the government’s favor, even in the face of arguments that the construction would cause environmental harms that would be nearly impossible to undo, Sierra Club, 140 S. Ct. at 1-2 (Breyer, J., concurring in part and dissenting in part). The equities tilt even more sharply in the government’s favor here, where plaintiffs’ harms are substantially more attenuated. See ROA.926-27; ROA.918-19; ROA.940-41. 52 Case: 19-51144 Document: 00515396947 Page: 63 Date Filed: 04/27/2020 CONCLUSION For the foregoing reasons, and those set forth in the government’s opening brief, the judgment of the district court should be reversed, except that the denial of an injunction against the Proclamation of national emergency and Section 284 construction should be affirmed. 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 April 2020 53 Case: 19-51144 Document: 00515396947 Page: 64 Date Filed: 04/27/2020 CERTIFICATE OF SERVICE I hereby certify that on April 27, 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: 00515396947 Page: 65 Date Filed: 04/27/2020 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 12,975 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