Parties requested in denied expedited hearing for this case before the us court of appeals for the ninth circuit. Following the Supreme Court order allowing the administration to temporarily begin construction using the funds. The time is set for argumentin the case of sierra clubversus trunk. Take your seat. Nice to see you again. Thank you chief justice smith. Thomas byron from the department of justice on behalf of the government defended. With me is karen hecker office of general counsel riyadh this case is about an internal transfer assignment among the ods accounts and the internal defense for itself didnt harm plaintiffs, they dont contend otherwise. They contend their interests were harmed by the subsequent downstream use of these funds for construction of border barriers and roads. But the transfer itself was authorized by a provision in the dod operations act and that provision was not designed to protect the kind of interests the plaintiffs assert, the kinds of recreational aesthetic and Environmental Concerns theyve raised. The requirements which is a universal requirement whether theyre seeking review under the apa or under an equitable ultra viris claim applies in any event and it asks this court to determine whether those kinds of interests that the plaintiffs are asserting are aligned with the objectives of congress purpose in enacting the statute they rely on. Here its actually intended to regulate the relationship between the department of defense and the congress, the congressional committee, not the interest of the plaintiffs there are asserting. Under your theory who would be an interest . Judge smith in his dissent articulated a view that perhaps those who would otherwise have been entitled to receive the funds could be within the zone of interest and that makes no sense your honor. We dont know who those people would be because the funds were never extended, contracts were never left. It may be that in the case of a particular transfer there might not be a plaintiff within the zone of interest. Thats true in a variety of cases but its not a basis for relaxing the zone of interest requirement. I want to emphasis the Supreme Courts grant of a stay pending appeal was based among other reasons the court said on its concern about the cause of action that the plaintiffs overlying, this zone of interest concern. Statutory cause of action brought by the sierra club but i dont see that the plaintiffs brought statutory causes of action against the government. What the causes of action thatthey brought work for violation of the appropriations act , ultra viris and it was the government that raised sections 8005902 and 44, 284 in effect so the zone of interest test would apply to the causes of action that the plaintiffs actually brought, not to what the defense would be. Justice, i disagree with the characterization. I think if you look at obviously the briefs in this court and also the complaints that section 8005 performs the central part of the plaintiffs theory here and let me take a step back and just say that in all of the appropriations cause cases that have been discussed in the briefs and that the plaintiffs have relied on, the focus is always on the limitations in an operations statute so in macintosh, in department of the navy and in herrington, the Fourth Circuit, let me turn to the department of navy in the Fourth Circuit where judge kavanaugh made clear that the way congress expresses its authority under the appropriations clause is through appropriations statutes and thats why the appropriate focus in all those cases has been on the statutory terms but limits that the plaintiffs rely on, thats the basis for their concern. They say that the Defense Department violated the limits in section 8005 and thats why the operations cost is implicated. The question was whether these funds have been permitted by law, of course they have. The law the congress to enact which was the 1. 375 billion dollars in border fencing in texas, thats what congress appropriated and the argument is that the governments acting in violating the appropriations clause by spending in excess of that amount and in other places along the southwest boundary. Judge wardlaw let me take that in a couple of respects. First of all the plaintiffs have argued for example that by improving some but not all of the separate requests by a Different Agency, the hs for funding for that agency construction. How does dhs being a Different Agency make a difference in this case where the only reason dod did the reprogramming was because the hs requested it . It makes it a big difference because section 8005 speaks of an item of military requirements and whether that is unforeseen, whether the item is unforeseen and in the language of the provision i think its 241 which reflects the same limitations but is not part of just each individual operations act as part of title x uses similar terms and the item in the context is an item in dods budget, not in other agency budget. The whole purpose of section 8005 to regulate that dynamic an ongoing relationship. Why then do the parties have a dispute about what the particular item is . What your characterization of the item is. The counter drugs support my dod and thats the kind of thing that could have been included in dods budget request and remember the ods approach to appropriation acts were finalized in september 2018 several months before i think five months before the dhs appropriation was finalized and so the question about whether its unforeseen, what kind of item were talking about as to be measured with respect to the dodappropriations process which was completed in september. And verify one issue for me, the Motions Panel said multiple times in its opinion dod was going to transfer funds after they had been put into the counter drug dod account, was going to transfer the funds to dhs, is that correct or is that wrong . Thats wrong. The record explains and i like knowledge its a bit tedious, uses a lot of jargon , thats the nature of these budgeting and appropriations documents, but it makes clear that the transfer is within the dod accounts. The dod is going to be the one to spend the funds . So let me just go back judge word want to your question because you are asking also if im understanding correctly about whether this approval of a lower amount for dhs constituted some kind of. Congresses word on what it would spend for fencing along the southwest border. And i think the answer to that is twofold. One point i just made is that wholly apart from that. Its not the government. Its still the executive branch. If the question is whether congress in the consolidated appropriations act by approving a smalleramount , a lower amount of appropriations and was requested, the gao, Government Accountability office which is the legislative branch and independent Watchdog Agency expressly concluded and pointed out that it has reached similar conclusions. Your referring to your20 8j letter. How much deference to we both the gao. Judge cavanaugh in the department of the navy opinion refer to that as an expert view and the court should give it appropriate consideration. To you all is the Expert Agency with respect to appropriations law and thats why all those cases often refer to gao opinions about appropriations questions so gao aspects expressly said the approval of a lower amount by congress is not a denial and that transfers several agencies not just dod under this authority had been approved by gao in the past where there had been a lower not yet the denial of a greater amount. So its fascinating to me how these briefs are written and how the case is written. One starts them almost preelection with the president promising a board of law and its going to cost however billion and congress refusing to expend that many over and over its to pay for that Government Shutdown, ultimately some compromise, some lesser amounts, some smaller piece and then you start with the item has to be specifically requested by dod and specifically turned down, its almost like youre lying to each other. I dont think were talking past each other but i think the relevant consideration is the statutory text and 2005 does talk aboutthose items denied by congress that were unforeseen. Thats the basis for the District Court permanent injunction and is the appropriate focus for the courts. Would you review that an item is denied within the meaning of 8005 only if the line is zeroed out . Your honor, i dont think thats the only way it could be denied but i think this is an important point about 1005 regulates the relationship between congress and the Defense Department. It doesnt, the way we pointed out in our briefs that theres a lot of evidence of the backandforth to the agency and appropriations experts on the hill. Thats often reflected in the Committee Conference report which we cited 600, 680 something pages that goes through the backandforth of what was requested. What the house approved, what the Conference Committee finally decided so theres all that backandforth and that theevidence of what congress considered. If they didnt zero outline but they put in the conference report we dont want to spend on this you would say that counts as a denial. That could well be judge collins and all of this, its not clear whether that would be additionally enforceable in that context and its hard to imagine a situation, but certainly not by plaintiffs asserting the kind of interest that these plaintiffs are alleging where a court could sort of discern based on that backandforth thats the backandforth that congress uses to determine whether an item was denied, whether this is an appropriate use of transfer of authority and that transfer of authority is again let me go back judge word law to your point about the appropriations act and in that statute congress included an authorization to use prior transfer of authority in addition to the transfer of authorities in that bill itself so congress could have if it sought to restrict the use of the transfer authority could have in the consolidated appropriations act committed that for any particular purpose or altogether read not only did it not do that expressly approved those uses. Judge collins, going back to this question about whats denied and whats not, the gao has said that merely reducing amount is not a denial and im not aware of any other opinions that the gao may have issued about what constitutes a denial but one thing we know is that here is such attenuation. Bill, Different Agency, different request that its not within and gao is clear, its notwithin the terms of the limitation. Going back to zone of interest, on this record is there anyone you believe within the zone of interest that could challenge the board of law funding . Its possible. On this record. The record does include the details about the programs from within the funds were taken and a very large bulk of the funds were from military personnel. Access retirement estimate that turned out not to be needed because military personnel were using the different benefit that was offered to them so those estimates turned out to be excessive. Some of the other programs though may have included for example a contractor who expected to be granted a contract to build i dont recall. Many of the states independently california and new mexico raised similar issues. They say we have substantial military contracting on our states. Why isnt that sufficient from a low standard of the zone of interest to satisfy the requirements . On this record again the plaintiffs are not asserting any contractor in their state would have been entitled to fund from the transfer accounts so i dont think theyve alleged those kind of interests here. Your question is whether its possible that somebody might in theory be within the zone of interest. I dont know the answer to that but again, whether somebody is able to challenge a particular case is not the appropriate measure. Supposed somebody owned a home that was a ranch right on the border and in connection after the funds are reprogrammed they come with a wrecking ball to tear it down. Of course theyre going to compensate them for it but they come with a wrecking ball. Does he have a cause of action to say wait a minute, reprogramming was illegal . It sounds a little bit like a patch act which i expect is your point and the Supreme Court there said that users , uses of the land at least with respect to that statute at issue in that case could be within the zone of interest but thats because the purpose of the statute that authorized acquisition of land for indian uses by Indian Tribes in that case expressly considered uses it was designed to encourage economic benefit for the tribes themselves. So congress identified that purpose area here the downstream use for construction or demolition or whatever it might be is not the purpose of the transfer authority so the homeowner in that case like these plaintiffs here might have a claim about the statute offering that later use. Here 284. We can talk about 284, that expressly authorizes the conduct, construction at issue here but thats not what the District Court found and the purpose of the transfer statute just has nothing to do with the later use which could be really anything within military requirements. That person would have no cause ofaction in your view. At least with respect to enforcing the limits in 8005. There would be ample remedies for challenging its on other grounds area but i think of what were talking about is just 1005,the transfer, the internal transfer authority , thats what the zone of interest needs to focus on here. If it would indicate that like in this case 8005 is essentially in my view a firms defense. That is subject to our requirements as opposed to the statute where theres an implied cause of action or direct cause of action. Chief Justice Thomas i think i would have to take issue first with this from an affirmative defense. I would say then that because we dont, we havent conceived this as an affirmative defense and i havent frankly look for cases that way but one of the reasons i think we know looking at for example i think clark says this, that the Rabbit Rabbit of the complaint and the limitations of the statute or the constitutional provision to be enforced is the proper focus of the zone of interest inquiry area and that based on that focus, the limitation here is not the constitution appropriations clause by itself. As i said the judge wardlaw earlier these funds were appropriated by congress in the appropriations act. The only question is whether the internal transfer authority has been complied with and i would like to reserve some time for rebuttal and id appreciate the courts questions. If there are no further i like to reserve the remainder. Thank you your honor and good morning area for a dean for Plaintiff Sierra Club and southern border communities coalition. With me is rona jaffa. You been here throughout theentire litigation. Id like to devote my time to three questions and then ill just answer whatever else the court is interested in area id like to explain why eMotions Panel got it right. Id like to ask this court to in addition reached the section 284 issue that was alluded to in some of the questioning and finally i just like emphasized the urgency of action at this stage. So first of all, we dont think given the manifest correctness of the motions decision we dont think you need to go beyond the second layer decision because you can find that whether or not its binding on this court, the eMotions Panel was correct. It was persuasive, and had us here at argument and it had supplemental breathing, it issued a published decision and whether its finding the court should adopt its conclusions and in particular the conclusion that the subject of this back and forth about whether the government is invoking second aw five as a defense or whether we are bringing claims under section 8005 i think it might help to clarify you were talking about the timeline and the different briefs. We filed this complaint on february 19 which was the first businessday after the president signed the consolidated operations. And also on february 15 was the day the white house issued an official announcement saying they were taking the 1. 375 billion congress had given them after this very lengthy Government Shutdown. But would nonetheless be building a border wall 40. 1 billion. And that is scr 186. That white house announcement on february 15 doesnt include at all secondly thousand five and theres a good reason for it. They werent trumpeting the fact that they were going to be reading military personnel and Pension Funds for the wall. We also did not know that was their intention and when we suit we raised claims under the operations at because what they had announced was an intention to disregard promises appropriations judgment as well as under the consolidated appropriations act. We do not assert a private right of action nor did we even know that they thousand five was going to be triggered. We later amended the complaint once invoked 8005 which was in march and again in may. And we and reasons why that was not a lawful defense of their spending. We never suggested that section 8005 conferred a further right of action. And i do think that the Motions Panel got it right in saying these are claims under the operations act. They turn as many operations act claims must on issues of statutory interpretation because that is out congress exercises its appropriations judgment that does not convert every appropriations issue which is fundamentally a separation of powers issue into just a rogue statutory claim. If we were to disagree with any of the motions, panels conclusions. In and the courts didnt discuss the doctor and all . My understanding blair was focusing on circuit which i understand is sort of a more binding rule so the law of the case can change over the course if it turns out that facts have changed or are there is a manifest air might also erode the case. Circuit is not subject to those limitations so i believe blair is focusing on law of the circuit. When you made this comment th