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Joseph R. Biden, Jr., President of the United States, et al. v. Sierra Club, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 19-16102, 19-16300

Set for argument · February 22, 2021
Pre-decision estimate: 41% cert probability (95% interval 27%–56%)

Before the decision, about 9.9× the 4.1% base rate. The model weighted this up for a federal-government petitioner and a Ninth Circuit decision below.

Questions presented

In Section 8005 of the Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, Div. A, Tit. VIII, 132 Stat. 2999, Congress authorized the Secretary of Defense to transfer certain appropriated funds between Department of Defense (DoD) appropriations accounts "[u]pon determination by the Secretary * * * that such action is necessary in the national interest." Section 8005 contains a proviso stating "[t]hat such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress." Ibid. In 2019, the Acting Secretary of Defense transferred approximately $2.5 billion pursuant to Section 8005 and another similar provision to make funds available for DoD to respond to a request from the Department of Homeland Security for counterdrug assistance under 10 U.S.C. 284, including in the form of construction of fences along the southern border of the United States. The questions presented are as follows:

  1. Whether respondents have a cognizable cause of action to obtain review of the Acting Secretary's compliance with Section 8005's proviso in transferring funds internally between DoD appropriations accounts.

  2. Whether the Acting Secretary exceeded his statutory authority under Section 8005 in making the transfers at issue. ORDER OF FEBRUARY 3, 2021: THE MOTIONS TO HOLD FURTHER BRIEFING IN ABEYANCE AND TO REMOVE THE CASES FROM THE FEBRUARY 2021 ARGUMENT CALENDAR ARE GRANTED.

Counsel of record

For petitioner
Brian H. Fletcher
Acting Solicitor General

For respondent
Aimee Athena Feinberg
California Department of Justice

Case

Conference history
Distributed for 2 conferences

Amicus briefs
3 cert-stage · 13 merits
(3 supporting pet./neither, 10 respondent)

Proceedings

  1. Aug 03 2021
    JUDGMENT ISSUED.
  2. Jul 02 2021
    The motion to vacate the judgment is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to direct the District Court to vacate its judgments. The District Court should consider what further proceedings are necessary and appropriate in light of the changed circumstances in this case.
  3. Jun 22 2021
    Reply of petitioners Joseph R. Biden, Jr., President of the United States, et al. filed.
  4. Jun 18 2021
    Response in opposition to motion to vacate and remand from respondent Sierra Club & Southern Border Communities Coalition filed.
  5. Jun 18 2021
    Response to motion from respondents States of California and New Mexico filed.
  6. Jun 11 2021
    Motion to vacate and remand filed by petitioners.
  7. Apr 30 2021
    Letter from the Acting Solicitor General notifying the Court of the April 30, 2021, memorandum of the Deputy Secretary of Defense, filed. (Distributed)
  8. Feb 03 2021
    Motion to hold further briefing in abeyance and remove the case from the February 2021 argument calendar GRANTED.
  9. Feb 01 2021
    Motion to hold further briefing in abeyance and remove the case from the February 2021 argument calendar filed by petitioners. (Distributed)
  10. Jan 28 2021
    Record from the U.S.C.A. 9th Circuit electronic and located on Pacer.
  11. Jan 25 2021
    Motion for divided argument filed by respondents GRANTED.
  12. Jan 25 2021
    Record requested from the U.S.C.A. 9th Circuit.
  13. Jan 22 2021
    CIRCULATED
  14. Jan 19 2021
    Motion for divided argument filed by respondents.
  15. Jan 19 2021
    Brief amicus curiae of Rio Grande Landowners Coalition filed. (Distributed)
  16. Jan 19 2021
    Brief amici curiae of Defenders of Wildlife et al., filed. (Distributed)
  17. Jan 19 2021
    Brief amici curiae of Former Members of Congress filed. (Distributed)
  18. Jan 19 2021
    Brief amicus curiae of Tohono O'odham Nation filed. (Distributed)
  19. Jan 19 2021
    Brief amici curiae of 87 Religious Organizations filed. (Distributed)
  20. Jan 19 2021
    Brief amici curiae of Federal Courts Scholars filed. (Distributed)
  21. Jan 19 2021
    Brief amicus curiae of United States House of Representatives filed. (Distributed)
  22. Jan 19 2021
    Brief amicus curiae of The Cato Institute filed. (Distributed)
  23. Jan 18 2021
    Brief amicus curiae of The Rutherford Institute filed. (Distributed)
  24. Jan 18 2021
    Brief amicus curiae of Pacific Legal Foundation filed. (Distributed)
  25. Jan 14 2021
    CIRCULATED
  26. Jan 12 2021
    Brief of respondents Sierra Club & Southern Border Communities Coalition filed. (Distributed)
  27. Jan 12 2021
    Brief of respondents States of California and New Mexico filed. (Distributed)
  28. Jan 06 2021
    Blanket Consent filed by Petitioner, Donald J. Trump, President of the United States, et al.
  29. Dec 31 2020
    SET FOR ARGUMENT on Monday, February 22, 2021
  30. Dec 15 2020
    Brief amicus curiae of Landmark Legal Foundation filed.
  31. Dec 15 2020
    Brief amicus curiae of The American Center for Law and Justice filed.
  32. Dec 15 2020
    Brief amicus curiae of Rep. Andy Barr filed.
  33. Dec 08 2020
    Joint appendix filed. (Statement of costs filed 5/12/21).
  34. Dec 08 2020
    Brief of petitioners Donald J. Trump, President of the United States, et al. filed.
  35. Nov 24 2020
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 8, 2020. The time to file respondents' briefs on the merits is extended to and including January 12, 2021.
  36. Nov 13 2020
    Motion for an extension of time to file the briefs on the merits filed.
  37. Oct 19 2020
    Petition GRANTED.
  38. Oct 13 2020
    DISTRIBUTED for Conference of 10/16/2020.
  39. Sep 24 2020
    Reply of petitioners Donald J. Trump, President of the United States, et al. filed. (Distributed)
  40. Sep 23 2020
    DISTRIBUTED for Conference of 10/9/2020.
  41. Sep 17 2020
    Letter waiving the 14-day waiting period for the distribution of the petition for a writ of certiorari pursuant to Rule 15.5 filed.
  42. Sep 16 2020
    Brief of respondents Sierra Club & Southern Border Communities Coalition in opposition filed. (Distributed)
  43. Sep 16 2020
    Brief of respondents California and New Mexico in opposition filed. (Distributed)
  44. Sep 08 2020
    Brief amicus curiae of Landmark Legal Foundation filed.
  45. Sep 08 2020
    Brief amicus curiae of Rep. Andy Barr filed.
  46. Sep 08 2020
    Brief amicus curiae of The American Center for Law and Justice filed.
  47. Sep 02 2020
    Response to motion from petitioner Donald J. Trump, President of the United States, et al. filed.
  48. Sep 02 2020
    Motion to extend the time to file a response is granted and the time is extended to and including September 16, 2020, for all respondents.
  49. Sep 01 2020
    Letter of September 1, 2020 from the Acting Solicitor General filed.
  50. Sep 01 2020
    Motion of respondents California and New Mexico to extend the time to file a response from September 8, 2020 to September 16, 2020, submitted to The Clerk.
  51. Aug 07 2020
    Petition for a writ of certiorari filed. (Response due September 8, 2020)