No. 19-17501 In the United States Court of Appeals for the Ninth Circuit SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States, in his official capacity; MARK T. ESPER, Acting Secretary of Defense, in his official capacity; CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity; and STEVEN MNUCHIN, Secretary of the Treasury, in his official capacity, Defendants-Appellants. APPELLEES’ EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 TO LIFT STAY PENDING APPEAL Relief requested by December 30, 2019 On Appeal from the United States District Court for the Northern District of California Case No. 4:19-cv-892-HSG Dror Ladin Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 Cecillia D. Wang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Attorneys for Plaintiffs-Appellees (Additional Counsel on Next Page) Case: 19-17501, 12/16/2019, ID: 11533925, DktEntry: 2-1, Page 1 of 37
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No. 19-17501
In the United States Court of Appeals for the Ninth Circuit
SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, in his official capacity; MARK T. ESPER, Acting Secretary of Defense, in his official capacity; CHAD F.
WOLF, Acting Secretary of Homeland Security, in his official capacity; and STEVEN MNUCHIN, Secretary of the Treasury, in his official capacity,
Defendants-Appellants.
APPELLEES’ EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 TO LIFT STAY PENDING APPEAL
Relief requested by December 30, 2019
On Appeal from the United States District Court for the Northern District of California
Case No. 4:19-cv-892-HSG
Dror Ladin Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500
Cecillia D. Wang American Civil Liberties Union
Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Attorneys for Plaintiffs-Appellees (Additional Counsel on Next Page)
The undersigned counsel certifies that the following is the information required
by Circuit Rule 27-3:
(1) Telephone numbers, email addresses, and office addresses of the attorneys for the parties.
Counsel for Plaintiffs-Appellees: Dror Ladin ([email protected]) Noor Zafar ([email protected]) Jonathan Hafetz ([email protected]) Hina Shamsi ([email protected]) Omar C. Jadwat ([email protected]) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 Fax: (212) 549-2564 Cecillia D. Wang ([email protected]) American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Fax: (415) 395-0950 Sanjay Narayan ([email protected])* Gloria D. Smith ([email protected])* Sierra Club Environmental Law Program 2101 Webster Street, Suite 1300 Oakland, CA 94612 Tel.: (415) 977-5772 *Counsel for Plaintiff-Appellee Sierra Club Mollie M. Lee ([email protected]) American Civil Liberties Union Foundation
San Francisco, CA 94111 Tel.: (415) 621-2493 Fax: (415) 255-8437 David Donatti ([email protected]) Andre I. Segura ([email protected]) American Civil Liberties Union Foundation
of Texas P.O. Box 8306 Houston, TX 77288 Tel.: (713) 325-7011 Fax: (713) 942-8966 Counsel for Defendants-Appellants: James Mahoney Burnham ([email protected]) H. Thomas Byron III ([email protected]) Eric Grant ([email protected]) U.S. Department of Justice 950 Pennsylvania Avenue Washington, DC 20530 Tel: 202-353-8189 Fax: 202-514-7964
(2) Facts showing the existence and nature of the emergency.
This motion concerns the imminent construction of a massive, multibillion-
dollar project that would radically alter delicate and unique lands across the border.
The district court found that Plaintiffs will suffer irreparable harm from the
unlawful construction and permanently enjoined it, but stayed its own injunction.
Plaintiffs request that this Court lift the district court’s stay by December 30, 2019,
to provide Plaintiffs protection against the construction here, which, the district
court found, “cannot be easily remedied after the fact.” Order Granting in Part and
Denying in Part Pls.’ Mots. for Partial Summ. J. and Denying Defs.’ Mots. for
Integrated Natural Resources Management Plan, Barry M. Goldwater Range,
Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. Dec. 11, 2019), ECF
No. 236-6 at 66. Further substantial construction could begin after December 29,
2019, in San Diego, California.
As was true with respect to similar construction projects that are the subject
of a separate appeal in this case, “allowing Defendants to move forward with
spending the funds will allow construction to begin, causing immediate, and likely
irreparable, harm to Plaintiffs.” Sierra Club v. Trump, 929 F.3d 670, 688 (9th Cir.
2019). Lifting the stay on or before December 30, 2019, would prevent
construction in San Diego and minimize harm from the Arizona construction.
(3) Explanation of timeliness, contact with and service on other parties’ counsel, contact with the Court’s emergency motions unit, and proposed schedule.
Counsel for Plaintiffs contacted counsel for Defendants on December 12,
2019, the next day after the district court’s stay order, to inquire whether
Defendants intended to file a notice of appeal of the permanent injunction and to
advise Defendants of Plaintiffs’ intent to file this motion. Because Defendants
required additional time to determine whether and when they would appeal, the
parties agreed to speak again the next day. On December 13, 2019, Defendants’
counsel informed Plaintiffs that Defendants would file a notice of appeal, and that
Defendants would seek an emergency stay of the El Paso County v. Trump
I. The Stay Should Be Lifted Because Defendants Have No Likelihood of Success on the Merits and Have Not Established That the Injunction Will Cause Them Irreparable Harm. .......................... 8
a. Defendants’ plan to circumvent Congress’s appropriations power is not beyond review. ................................................................. 9
b. Defendants’ plan to funnel $3.6 billion in military construction funds to construction of a border wall is unlawful. .............................14
c. Defendants will not be irreparably harmed by the district court’s injunction. ................................................................................18
II. The Stay Should Be Lifted Because the Equities and Public Interest Weigh Against Allowing Defendants to Circumvent Congress’s Decisions. ...............................................................................19
III. The District Court Abused Its Discretion in Imposing a Stay. ................21
Alto v. Black, 738 F.3d 1111 (9th Cir. 2013) ..............................................................................12
Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986) ..............................................................................................13
City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ..............................................................................17
City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 19-17213, 2019 WL 6726131 (9th Cir. Dec. 5, 2019) .................................... 8
Clinton v. City of New York, 524 U.S. 417 (1998) ..............................................................................................20
Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994) ................................................................................12
Ctr. for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017) ................................................................................13
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) ..............................................................................................10
Gilligan v. Morgan, 413 U.S. 1 (1973) ..................................................................................................13
In re Magnacom Wireless, LLC, 503 F.3d 984 (9th Cir. 2007) ................................................................................11
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) ..............................................................................................12
Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) ................................................................................21
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ................................................................................. 11, 12, 22
Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) ........................................................................ passim
Sierra Club v. Trump, No. 4:19-cv-00892-HSG, 2019 WL 2715422 (N.D. Cal. 2019) .................. passim
Skinner v. Switzer, 562 U.S. 521 (2011) ..............................................................................................12
Trump v. Sierra Club, 140 S. Ct. 1 (2019) ............................................................................................6, 22
United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) ................................................................................11
United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) ...............................................................................10
Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302 (2014) ..............................................................................................17
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ................................................................................ 8
Webster v. Doe, 486 U.S. 592 (1988) ..............................................................................................13
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ..............................................................................................20
Consolidated Appropriations Act of 2019, Pub. Law No. 116-6, 133 Stat. 13 (2019) ...................................................... 1, 4, 5
2019 Department of Defense Appropriations Act, Pub. Law No. 115-245 (2019) ................................................................................ 6
J. (“Order”) 4, Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. Dec. 11,
2019), ECF No. 258 (attached as Exhibit 1) (citing CAA § 230(a)(1), 133 Stat. at
28). The next day, “[t]he President signed the budget legislation that ended the
shutdown, but he then declared a national emergency and pursued other means to
get additional funding for border barrier construction beyond what Congress had
appropriated.” Sierra Club v. Trump, 929 F.3d at 676. That same day, the White
House issued a fact sheet entitled “President Donald J. Trump’s Border Security
Victory” that specifically identified three sources of funding that Defendants
would divert to border wall construction in excess of the $1.375 billion Congress
had allocated:
(1) “[a]bout $601 million from the Treasury Forfeiture Fund,” 31 U.S.C. § 9705(a); (2) “[u]p to $2.5 billion under the Department of Defense [reprogrammed] funds transferred [to DHS] for Support for Counterdrug Activities” pursuant to 10 U.S.C. § 284; and (3) “[u]p to $3.6 billion reallocated from [DoD] military construction projects under the President’s declaration of a national emergency” pursuant to 10 U.S.C. § 2808, which provides that the Secretary of Defense may authorize military construction projects whenever the President declares a national emergency that requires use of the armed forces.
Id. at 679.
As Defendant Trump has repeatedly confirmed, Defendants are attempting
to use Section 2808 to directly override Congress’s refusal to accede to his funding
request. “When announcing the proclamation, the President explained that he
initially ‘went through Congress’ for the $1.375 billion in funding, but was ‘not
projects on the Barry M. Goldwater Range, in Arizona: that contract was awarded
on November 6, 2019,” and the “second contract relates to a project in San Diego
County, California: that contract was awarded on November 19, 2019.” Order 8.
According to Defendants, the timetable for “substantial construction” to begin on
the challenged projects is “40 days after contract award.” DoD Notice of Decision
to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 at 3, 4, Sierra
Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. Sept. 3, 2019), ECF No. 201
(attached as Exhibit 2).
ARGUMENT
I. The Stay Should Be Lifted Because Defendants Have No Likelihood of Success on the Merits and Have Not Established That the Injunction Will Cause Them Irreparable Harm.
Defendants cannot make a strong showing that they are likely to succeed on
the merits of any appeal, nor demonstrate any irreparable injury if the injunction
remains in effect during this appeal. In the absence of these “most critical factors,”
a stay is clearly unwarranted, and the Court need not examine the remaining
factors. See Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017) (citation
omitted). The district court erred in imposing a stay without determining that
Defendants satisfied these requirements. See City & Cty. of San Francisco v. U.S.
“aesthetic, socioeconomic, and environmental problems.” Id. at 213 (quotation
marks omitted).
According to the Supreme Court, the only relevant question is “whether
issues of land use (arguably) fall within [the statute’s] scope—because if they do, a
neighbor complaining about such use may sue to enforce the statute’s limits.” Id. at
225 n.7. As Section 2808 explicitly concerns land use, Plaintiffs, as “neighbors to
the use” may sue, and their “interests, whether economic, environmental, or
aesthetic, come within [the statute’s] regulatory ambit.” Id. at 227–28.1
Finally, the district court was correct to find that “Section 2808 provides
meaningful standards against which the Court may analyze Defendants’ conduct
under the statute.” Order 19. Defendants are unlikely to prevail in their arguments
that courts are not competent to construe the limitations that Congress imposed in
Section 2808. Order 15–17. Section 2808 does not resemble these rare instances
where statutory language and structure bar review under the APA. Cf. Webster v.
1 Should the Court determine that Plaintiffs’ claims are statutory claims
arising under Section 2808, it may treat them as APA claims. See, e.g., Alto v. Black, 738 F.3d 1111, 1117 (9th Cir. 2013) (considering under APA claims not “explicitly denominated as an APA claim” because they were “fairly characterized as claims for judicial review of agency action under the APA”); Clouser v. Espy, 42 F.3d 1522, 1533 (9th Cir. 1994) (“We shall therefore treat plaintiffs’ arguments as being asserted under the APA, although plaintiffs sometimes have not framed them this way in their pleadings.”); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 228, 230 n.4 (1986) (treating Mandamus Act petition as APA claim); see generally Skinner v. Switzer, 562 U.S. 521, 530 (2011) (“[A] complaint need not pin plaintiff’s claim for relief to a precise legal theory.”).
(2014) (“We expect Congress to speak clearly if it wishes to assign to an agency
decisions of vast economic and political significance.” (quotation omitted))).2
At bottom, “the plain reality presented in this case” is that “the border
barrier projects Defendants now assert are ‘necessary to support the use of the
armed forces’ are the very same projects Defendants sought—and failed—to build
under DHS’s civilian authority, because Congress would not appropriate the
requested funds.” Order 32; see generally City & Cty. of San Francisco v. Trump,
897 F.3d 1225, 1234 (9th Cir. 2018) (“In fact, Congress has frequently considered
and thus far rejected legislation accomplishing the goals of the Executive Order.
The sheer amount of failed legislation on this issue demonstrates the importance
and divisiveness of the policies in play, reinforcing the Constitution’s
‘unmistakable expression of a determination that legislation by the national
Congress be a step-by-step, deliberate and deliberative process.’”)). Moreover,
“[t]here is simply nothing in the record before the Court indicating that the eleven
border barrier projects—however helpful—are necessary to support the use of the
2 The administrative record established that DoD does not even expect to
derive a benefit from wall construction on the Barry M. Goldwater Range, which is the only military site involved in Defendants’ plan. While construction of a border wall “along the Barry M. Goldwater range” might be expected to “limit potential impact to military training” caused by migration, DoD’s records show that “impact to military training over the past five years has been negligible.” Admin. R., Ex. 3, at 69, Sierra Club v. Trump, No. 4:19-cv-00892-HSG (N.D. Cal. Sept. 16, 2019), ECF No. 206-3.
injunction at issue here on October 11, just over a month after Defendants
announced the eleven enjoined Section 2808 projects. Nor does the pendency of a
related appeal support a stay for the duration of this appeal. Regardless of whether
resolution of the related appeal would “address several of the threshold legal and
factual issues” at issue here, the stay of this injunction would persist until this new
appeal is resolved. The district court cited no precedent, and Plaintiffs are aware of
none, that would justify a stay based on these factors.
CONCLUSION
This Court should lift the district court’s stay of the permanent injunction.
Dated: December 16, 2019 Respectfully submitted,
Mollie M. Lee American Civil Liberties Union
Foundation of Northern California, Inc.
39 Drumm Street San Francisco, CA 94111 Tel.: (415) 621-2493 Fax: (415) 255-8437 [email protected] David Donatti Andre I. Segura American Civil Liberties Union
Foundation of Texas P.O. Box 8306 Houston, TX 77288 Tel.: (713) 325-7011
/s/ Dror Ladin Dror Ladin Noor Zafar Jonathan Hafetz Hina Shamsi Omar C. Jadwat American Civil Liberties Union
Program 2101 Webster Street, Suite 1300 Oakland, CA 94612 Tel.: (415) 977-5772 [email protected][email protected] Attorneys for Plaintiffs-Appellees *Attorneys for Plaintiff-Appellee
Sierra Club
Cecillia D. Wang American Civil Liberties Union
Foundation 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0770 Fax: (415) 395-0950 [email protected]