Opinion
CIVIL ACTION NO. 7:20-CV-00350
2022-05-16
UNITED STATES of America, Plaintiff, v. 0.720 ACRES OF LAND, MORE OR LESS, et al., Defendants.
Alyssa Marie Iglesias, Hilda M. Garcia Concepcion, US Attorney's Office, McAllen, TX, for Plaintiff. Peter McGraw, Texas RioGrande Legal Aid, Brownsville, TX, for Defendants Jesus Alvarez, Jr. David Louis Guerra, Office of the US Attorney, McAllen, TX, for Defendant U.S. Internal Revenue Service.
Alyssa Marie Iglesias, Hilda M. Garcia Concepcion, US Attorney's Office, McAllen, TX, for Plaintiff.
Peter McGraw, Texas RioGrande Legal Aid, Brownsville, TX, for Defendants Jesus Alvarez, Jr.
David Louis Guerra, Office of the US Attorney, McAllen, TX, for Defendant U.S. Internal Revenue Service.
ORDER DENYING DEFENDANT JESUS ALVAREZ, JR.’S MOTION TO DISMISS AND GRANTING PLAINTIFF'S CROSS-MOTION TO STRIKE DEFENSES
Randy Crane, United States District Judge I. Factual and Procedural Background
Now before the Court are Defendant Jesus Alvarez, Jr.’s "Rule 71.1(i)(1)(C) Motion to Dismiss Plaintiff's Complaint in Condemnation and Declaration of Taking" (Dkt. No. 29) and Plaintiff's "Cross-Motion to Strike Improper Defenses" (Dkt. No. 34). This case is one of a multitude of recent land condemnation actions filed here, the purpose for which is at the heart of the parties’ pending dispute. On November 3, 2020, Plaintiff filed its Complaint in Condemnation (Complaint) and Declaration of Taking (DOT) seeking to acquire a fee simple estate in Tract RGV-RGC-5067, consisting of 0.720 acres of land along the border between Starr County, Texas and Mexico (the property). (Dkt. Nos. 1, 2). The Complaint and DOT contain identical schedules identifying the authority and public purpose for the taking. (Dkt. Nos. 1 & 2, Schedules A & B). Plaintiff acquired title to the property on November 11, 2020, when it deposited $21,163.00 as estimated just compensation for the taking, but has not sought possession. (Dkt. No. 5). The following persons or entities have an identified ownership interest in the property: Joel Alvarez, Jesus Alvarez, Jr., Eligio L. Alvarez, Jessica L. Alvarez Escobar, Maria Albesa Alvarez Hinojosa, Maria Esmeralda Alvarez Garza, Aleida Alvarez Hinojosa, Roman Alvarez, Maria Luisa Mireles Escobar, U.S. Internal Revenue Service (IRS), and Starr County Tax Assessor and Collector Ameida Salinas (County Tax Assessor). (Dkt. No. 61, Amended Schedule G). Of these eleven interested parties, all of whom were served or waived service, only Defendants Joel Alvarez, Jesus Alvarez, Jr., and the IRS formally answered. See (Dkt. Nos. 1 & 2, Schedule G; Dkt. Nos. 27, 28, 62). Simultaneously with the filing of their Answers, on December 30, 2020, Joel Alvarez and Jesus Alvarez, Jr. filed the Motion to Dismiss the Complaint and DOT under Federal Rule of Civil Procedure 71.1(i)(1)(C), arguing that the stated public purpose for the taking—"to construct, install, operate, and maintain roads, fencing, vehicle barriers, security lighting, cameras, sensors, and related structures designed to help secure the United States/Mexico border within the State of Texas" —exceeds the limits placed by Congress when considered against the stated authority for funding that purpose: the Consolidated Appropriations Act of 2019, which Defendants read to limit use of the appropriated funds to fencing only. (Dkt. No. 29). In its response to the Motion, Plaintiff makes two procedural objections to dismissal, asserting that Rule 71.1 precludes Defendants from raising objections and defenses to a condemnation action in a motion to dismiss, and from seeking dismissal of the action after Plaintiff has acquired title. (Dkt. No. 34 at ¶¶ 17, 18). Plaintiff also responds in substance, taking issue with Defendants’ statutory interpretation and arguing that Plaintiff has the authority to use the cited appropriations for expenditures "rationally related" to the purpose set forth in the Complaint and DOT. (Id. at ¶¶ 19-26). Plaintiff's response concludes with the Cross-Motion to Strike Defendants’ related objections and responses contained within their Answers, asserting that that "[t]hese challenges are not legal defenses and lack merit[.]" (Id. at ¶¶ 27-33; see Dkt. No. 27 at ¶¶ 19-22; Dkt. No. 28 at ¶¶ 19-22).
See 40 U.S.C. § 3114(b)(1) ; United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cty., State of Miss. , 639 F.2d 299, 303 (5th Cir. 1981) ("[T]he filing of a declaration of taking and deposit of estimated compensation vests title in the United States, accomplishing the taking.")
Plaintiff filed the Amended Schedule G in August 2021, and counsel for Defendants Joel Alvarez and Jesus Alvarez, Jr. announced at the September 2021 status conference that these Defendants had initially contested the ownership interests of Roman Alvarez and Maria Luisa Mireles Escobar, but were no longer doing so.
This does not affect the additional interested parties’ ability to receive just compensation for their interests. See Fed. R. Civ. P. 71.1(e)(3) ("[A]t the trial on compensation, a defendant—whether or not it has previously appeared or answered—may present evidence on the amount of compensation to be paid and may share in the award.").
(Dkt. Nos. 1 & 2, Schedule B).
(Id. , Schedule A).
The same day Plaintiff filed its response and Cross-Motion to Strike, on January 20, 2021, recently inaugurated U.S. President Joseph R. Biden issued a proclamation terminating the national emergency on the southern border declared by former U.S. President Donald J. Trump on February 15, 2019, and directing "careful review of all resources appropriated ... to construct a southern border wall." The Court deferred ruling on the Motions while Plaintiff undertook this review, pursuant to which the property became eligible for revestment of title in the original owners. Defendants Joel Alvarez and Jesus Alvarez, Jr. sought this remedy but have not been able to obtain it, apparently due to Defendants Roman Alvarez and Maria Luisa Mireles Escobar's desire to receive just compensation for the taking instead.
Proclamation No. 10142 of January 20, 2021: Termination of Emergency with Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction, 86 Fed. Reg. 7225 (published Jan. 27, 2021).
Defendant Joel Alvarez passed away on November 27, 2021, and the Court granted Plaintiff's motion to dismiss him from the action given that his siblings’ descendants to which his interest passed are already Defendants, as is the IRS, which held a lien against him. (Dkt. No. 68; see Dkt. No. 67). Unable to obtain revestment of title, Defendant Jesus Alvarez, Jr. (hereinafter Defendant) has asked the Court to now resolve his challenge to the taking, as raised in his Motion to Dismiss and Answer subject to Plaintiff's Cross-Motion to Strike. Upon consideration of the Motions and the parties’ responsive authority and briefing, in light of the relevant law, the Court rejects Plaintiff's procedural objections to the Motion to Dismiss, but accepts that Plaintiff had statutory authority to effectuate the taking and that the paragraphs of Defendant's Answer raising noncompliance with the 2019 CAA must be stricken as legally insufficient.
(Dkt. Nos. 34, 41, 66, 73; Dkt. No. 49, Exhs. 1, 2).
II. Analysis
A. Plaintiff's Procedural Arguments
As did its sister court when considering the same arguments, the Court disposes of Plaintiff's procedural arguments in Defendant's favor. See 7:20cv425 at (Dkt. No. 70); 7:20cv329 at (Dkt. No. 40); (Dkt. No. 49, Exhs. 1, 2). Plaintiff first submits that Rule 71.1 "does not permit a landowner to move to condemn a condemnation action" by virtue of subsection (e)(3), which provides that "[a] defendant waives all objections and defenses not stated in its answer," and that "[n]o other pleading or motion asserting an additional objection or defense is allowed." (Dkt. No. 34 at ¶ 17); FED. R. CIV. P. 71.1(e)(3). As Defendant notes, Plaintiff overlooks that Rule 71.1(e)(3) precludes a motion asserting an additional objection or defense, which as reflected in the subheading and remaining text, consists of those objections or defenses not stated in the answer. (Dkt. No. 41 at ¶ 4); see FED. R. CIV. P. 71.1(e)(3) (addressing "Waiver of Other Objections and Defenses") (emphasis added). In contrast to United States v. 0.996 Acres of Land , 2009 WL 10691340 (S.D. Tex. Aug. 4, 2009), the only case cited by Plaintiff in support of its position, Defendant filed his Motion to Dismiss on the basis of objections and defenses raised in his simultaneously filed Answer, rather than a motion to dismiss that pre-dated the answer and thus did not comply with Rule 71.1(e) at the time of the motion's filing. See (Dkt. No. 41 at ¶ 5); 0.996 Acres of Land , 2009 WL 10691340, at *2 ; (Dkt. No. 41, Exhs. 1, 2). Although the district court in 0.996 Acres considered the motion to dismiss as "improperly filed," it went on to consider the defendant's objection contained within its prematurely filed motion "as part of its answer and as a challenge to the taking"—a resolution consistent with Defendant's, and the Court's, reading of Rule 71.1(e)(3). (Dkt. No. 41 at ¶ 5); 0.996 Acres of Land , 2009 WL 10691340, at *2. Subsection (e)(3) does not prevent the filing of Defendant's Motion to Dismiss raising objections and defenses otherwise raised in his Answer then on file.
Plaintiff next argues that the subsection of Rule 7.1.1 through which Defendant moves to dismiss, subsection (i)(1)(C), does not permit dismissal where the government has already taken title under the Declaration of Taking Act (DTA), 40 U.S.C. § 3114(b), as in the case at hand. (Dkt. No. 34 at ¶ 18). Rule 71.1(i)(1)(C) provides as follows:
(i) Dismissal of the Action or a Defendant.
(1) Dismissing the Action.
...
(C) By Court Order. At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken.
FED. R. CIV. P. 71.1(i)(1)(C). Defendant moves to dismiss pursuant to the first sentence of subsection (C), enabling dismissal before a determination of just compensation, but Plaintiff interprets the second sentence as limiting the availability of any such dismissal to that time period between the filing of the condemnation action and the taking of title. See (Dkt. No. 29 at p. 5; Dkt. No. 34 at ¶ 18). Plaintiff's reading of the rule creates a scenario in which it may unilaterally insulate itself from dismissal before any defendant has been served, and without regard to any objections or defenses otherwise allowed by Rule 71.1, even if those defenses or objections engage the government's very authority to act. This is not the law. As Defendant observes, the DTA does not, in and of itself, authorize a taking. See (Dkt. No. 41 at ¶ 7); United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cty., State of Miss. , 639 F.2d 299, 303 (5th Cir. 1981) ("The [DTA] does not bestow independant [sic] authority to condemn lands for public use. On the contrary, it provides a proceeding ancillary or incidental to suits brought under other statutes.’ ") (quoting United States v. Dow , 357 U.S. 17, 22, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) ) (internal quotations omitted). The DTA provision stating that the government accomplishes the taking of title upon the filing of the DOT and deposit of estimated just compensation, vesting the right to just compensation in those persons entitled to it, is itself contingent upon the government's authority to act. See 40 U.S.C. § 3114(b). As Defendant observes and precedent confirms, it follows that the second sentence of Rule 71.1(i)(1)(C) "prevents dismissal without an award of just compensation to the landowner for title or any lesser interest lawfully taken by the government," leaving a defendant free to seek dismissal for a taking without statutory authority. (Dkt. No. 41 at ¶¶ 7, 8); 162.20 Acres , 639 F.2d at 303 ("It is clear that a condemnee may challenge the validity of the taking for departure from the statutory limits.") (quoting Catlin v. United States , 324 U.S. 229, 240, 65 S.Ct. 631, 89 L.Ed. 911 (1944)) (internal quotations omitted). Subsection (i)(1)(C) poses no bar to the Motion.
B. Parties’ Substantive Arguments
The parties’ substantive arguments to this Court, although also presented to its sister court, were never resolved there; that court deferred ruling until the defendant's motion to dismiss "fully ripens, which will be when [Plaintiff] seeks to acquire possession or any party moves to fix just compensation," neither of which occurred given the parties’ agreement to revest title. 7:20cv425 at (Dkt. No. 70 at p. 8; Dkt. Nos. 184-86); 7:20cv329 at (Dkt. No. 40 at p. 4; Dkt. Nos. 58-60). Here, a criterion for ripeness has occurred—at least certain Defendants seek an award of just compensation—and Defendant's challenge to the taking is ripe for consideration.
Again, that challenge consists of Defendant's argument that the identified purpose for the taking exceeds congressional authority. As Plaintiff recognizes in its response, its Complaint and DOT identify the following sources of authority for the taking: (1) the General Condemnation Act (GCA); (2) the DTA; (3) the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), as amended; and (4) the 2019 Congressional Appropriations Act (2019 CAA). (Dkt. Nos. 1 & 2, Schedule A; Dkt. No. 34 at ¶¶ 9, 10). The GCA, 40 U.S.C. § 3113, provides "judicial access" to federal government officers authorized to condemn land for public use, and the DTA sets forth the procedure for doing so; these statutes do not serve as stand-alone authority for a taking. See (Dkt. No. 41 at ¶ 24); United States v. 1.04 Acres of Land, More or Less, Situate in Cameron Cty., Tex. , 538 F. Supp. 2d 995, 1007-08 (S.D. Tex. 2008). IIRIRA, though, has long granted authority to federal officers to condemn land deemed "essential to control and guard the boundaries and borders of the United States" against violations of U.S. immigration laws, for the purpose of "construct[ing] reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provid[ing] for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border." Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009, Div. C, Tit. I, § 102 (Sept. 30, 1996) (codified at 8 U.S.C. § 1103 & creating 8 U.S.C. § 1103 note), as amended by Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844, Div. E, Tit. V, § 564 (Dec. 26, 2007) (amending 8 U.S.C. § 1103 note). Defendant does not (and cannot) dispute the continued existence of this authority, but argues that the 2019 CAA—the cited source of funding for the taking—limits it by providing that such funds "shall be available only" for "construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector." See (Dkt. No. 29; Dkt. No. 41 at ¶ 25); 2019 CAA, Pub. L. No. 116-6, 113 Stat. 13, Div. A, Tit. II, § 230(a) (Feb. 15, 2019). According to Defendant, that the stated purpose for the taking includes not only fencing but also "roads, ... vehicle barriers, security lighting, cameras, sensors, and related structures" renders the taking in excess of congressional authority, giving basis for the Court to invalidate it and dismiss the action. See (Dkt. Nos. 1 & 2, Schedule B; Dkt. No. 29). Plaintiff disagrees, taking the position that § 230(a) of the 2019 CAA encompasses funding for all items included in the purpose of taking, or in the alternative, that precedent supports Plaintiff's authority to use the funds appropriated "for expenditures rationally related to constructing fencing for border security purposes." (Dkt. No. 34 at ¶¶ 19-26).
Section 3113 states in full:
An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so. The Attorney General, on application of the officer, shall have condemnation proceedings begun within 30 days from receipt of the application at the Department of Justice.
40 U.S.C. § 3113.
The note to 8 U.S.C. § 1103 been amended several times, but only the most recent amendment by the Consolidated Appropriations Act of 2018 is directly relevant to the Court's analysis. See, e.g., United States v. 1.16 Acres of Land, more or less, situate in Cameron Cty., Tex. , 585 F. Supp. 2d 901, 903-05 (S.D. Tex. 2008) ; (Dkt. No. 41 at ¶ 15).
Section 230(a) of the 2019 CAA provides as follows:
SEC. 230. (a) Of the total amount made available [to the U.S. Department of Homeland Security (DHS)] under "U.S. Customs and Border Protection—Procurement, Construction, and Improvements", $2,370,222,000 shall be available only as follows:
(1) $1,375,000,000 is for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector;
(2) $725,000,000 is for the acquisition and deployment of border security technologies and trade and travel assets and infrastructure, to include $570,000,000 for non-intrusive inspection equipment at ports of entry; and
(3) $270,222,000 is for construction and facility improvements, to include $222,000,000 for humanitarian needs, $14,775,000 for Office of Field Operations facilities, and $33,447,000 for Border Patrol station facility improvements.
2019 CAA at Div. A, Tit. II, § 230(a). Plaintiff takes issue with Defendant's reading of § 230(a) to limit the funds authorized by subsection (1) to primary pedestrian fencing only, asserting that the word "only" modifies the $2.37 billion appropriated in § 230(a), and that subsections (1), (2), and (3) go on to identify the "categories of expenditures for which funds have been appropriated." (Dkt. No. 34 at ¶ 20). The Court has no quarrel with Defendant's interpretation, but it only serves to contradict Plaintiff's reading if roads, vehicle barriers, security lighting, cameras, sensors, and related structures (referred to by Defendant collectively as "fence-related infrastructure") are funded by subsections (1), (2), and/or (3). Subsection (1) does not plainly fund fence-related infrastructure, and subsection (3) clearly does not, as it devotes all $270 million in appropriated funds to "humanitarian needs," "Office of Field Operations facilities," and "Border Patrol station facility improvements." See (Dkt. No. 41 at ¶ 19). Subsection (2), by dedicating $570 million of its $725 million total funds to "non-intrusive inspection equipment at ports of entry"—a term that does not encompass fence-related infrastructure—leaves available $155 million to "acquire and deploy": (1) "border security technologies" and (2) "trade and travel assets and infrastructure." As Defendant points out, the latter is a term of art, defined by DHS in its fiscal year 2019 budget request to mean those assets and infrastructure "needed to conduct the Trade and Travel mission, including integrated screening, scanning, biometric, and transaction processing systems to enhance the interception of potential threats before they can cause harm while expediting legal trade and travel," not roads and other infrastructure associated with border fencing. (Id. at ¶ 11 n.4; see Dkt. No. 29, Exh. 1 at p. 324). The same DHS budget request defines "border security assets and infrastructure" to mean "[t]echnology and assets needed to conduct [U.S. Customs and Border Protection's] Border Security mission, including ... [i]ntegrated detection and surveillance equipment to enhance situational awareness to facilitate border enforcement," and "[p]edestrian and vehicle fencing, wall structures, roads, lighting, low water crossings, bridges, drainage and grate systems, marine ramps, and other related systems." (Dkt. No. 29, Exh. 1 at p. 324). Roads, vehicle barriers, lighting, and related structures fall most neatly within the category of "assets," but at the very least, security cameras and sensors constitute border security "technologies" that may be "acquired and deployed." Neither the DHS budget request nor statutory language demonstrate otherwise; DHS's definition of "tactical infrastructure," to which Defendant appeals as the term of art that encompasses fence-related infrastructure, does not include cameras and sensors, see (id. at pp. 185, 360), and Defendant is simply incorrect that "Congress had not previously used [the term "border security technologies"] to authorize expenditures related to fencing or related infrastructure." See (Dkt. No. 41 at ¶ 19). Nonetheless, Defendant's resort to legislative history succeeds in eliminating subsection (2) as a source of funding for fence-related cameras and sensors. As Defendant points out, an amendment proposing supplemental appropriations to fund these cameras and sensors (along with roads and lighting) was withdrawn and the 2019 CAA enacted with the omission intact—a distinction highlighted by one congressman, and leading another to call on the president to declare a national emergency to fund the omitted items. (Id. at ¶¶ 15, 16); 165:13 CONG. REC. S375 (Jan. 22, 2019) (text of SA5 proposed by Sen. McConnell (KY) for Sen. Shelby (AL)); 165:15 CONG. REC. S545 (Jan. 24, 2019) (support for SA5 by Sen. Capito (W. Va.)); 165:54 CONG. REC. S2064 (Mar. 28, 2019) (withdrawal of SA5 by Sen. McConnell (KY)); 165:29 Cong. Rec. H2002 (Feb. 14, 2019) (support for declaration of national emergency by Rep. Brooks (AL)). President Trump thereafter declared a national emergency to facilitate the diversion of other federal funds to supplement the 2019 CAA the very day he signed it into law. (Dkt. No. 41 at ¶ 17); Proclamation No. 9844 of Feb. 15, 2019: Declaring a National Emergency Concerning the Southern Border of the United States, 84 Fed. Reg. 4949 (published Feb. 20, 2019) ; see Sierra Club v. Trump , 929 F.3d 670, 678-79 (9th Cir. 2019) (setting forth events leading up to diversion of funds). This Court, though, cannot heed Plaintiff's call to ignore Congress's intent, which was to exclude fence-related cameras and sensors from the "border security technologies" funded by subsection (2).
See also (Dkt. No. 29, Exh. 1 at p. 17) (including "tactical infrastructure" as a sub-category of "border security assets and infrastructure," which separately include surveillance systems and sensors).
See infra n. 13.
Defendant's Answer also challenges the use of "funds appropriated by Congress to the Department of Defense ... and unlawfully transferred for border wall construction to fund this taking," but Plaintiff has not purported to fund this taking with diverted funds, which in any event, President Biden's contravening proclamation redirected. See (Dkt. No. 27 at ¶ 21).
Finally, to the extent that the language of subsection (1) leaves room for funding of fence-related infrastructure, the Court agrees with Defendant that legislative history does not. As Defendant points out, "[i]n prior appropriations, Congress repeatedly authorized the use of funds in connection with border security infrastructure apart from fencing." (Dkt. No. 29 at p. 10). In his supplemental briefing more recently filed, Defendant emphasizes that Congress did so again for fiscal years 2020, 2021, and 2022, by initiating and continuing the appropriation of funds for "construction of a barrier system along the southwest border." (Dkt. No. 66) (emphasis added). Section 230(a)(1) of the 2019 CAA, though, appropriates funds for primary pedestrian fencing, not infrastructure. Since courts usually "presume differences in language [between like statutes] convey differences in meaning," the Court agrees with Defendant that Congress's "choice to use the narrower term [in the same context] requires respect, not disregard." (Id. at ¶ 10); Wisconsin Cent. Ltd. v. United States , ––– U.S. ––––, 138 S. Ct. 2067, 2071-72, 201 L.Ed.2d 490 (2018) (quoting Henson v. Santander Consumer USA Inc. , ––– U.S. ––––, 137 S.Ct. 1718, 1723, 198 L.Ed.2d 177 (2017) ). The language and legislative history underlying § 230(a) require the conclusion that the 2019 CAA did not appropriate funds for fence-related roads, vehicle barriers, security lighting, cameras, sensors, and related structures included in the purpose for the taking.
Congress appropriated funds broadly for border protection/security "fencing, infrastructure, and technology" in all of the years cited by Defendant with the exception of 2017, when it authorized funding for replacement of certain "existing primary pedestrian and vehicle border fencing" and the addition of "gates to existing barriers," as well as "acquisition and deployment of border security technology" and "new border road construction." See (Dkt. No. 29 at p. 10); Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295, 120 Stat. 1355, Tit. II (Oct. 4, 2006); Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844, Div. E, Tit. II (Dec. 26, 2007); Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, 125 Stat. 786, Div. D, Tit. II (Dec. 23, 2011); Consolidated and Further Continuing Appropriations Act of 2013, Pub. L. No. 113-6, 127 Stat. 198, Div. D, Tit. II (Mar. 26, 2013); Consolidated Appropriations Act of 2014, Pub. L. No. 113-76, 128 Stat. 5, Div. F, Tit. II (Jan. 17, 2014); Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, 129 Stat. 2242, Div. F, Tit. II (Dec. 18, 2015); Consolidated Appropriations Act of 2017, Pub. L. No. 115-31, 131 Stat. 135, Div. F, Tit. VI (May 5, 2017). In 2018, funds were made available for "secondary fencing" in the San Diego Sector, "primary pedestrian levee fencing" and "primary pedestrian fencing" along the southwest border in the Rio Grande Valley Sector, "replacement of existing primary pedestrian fencing along the southwest border," "border barrier planning and design," and "acquisition and deployment of border security technology." Consolidated Appropriations Act of 2018, Pub. L. No. 115-141, 132 Stat. 348, Div. F, Tit. II, § 230(a) (Mar. 23, 2018).
Although only the Consolidated Appropriations Act of 2020 contains this language, each subsequent Act has continued the funding provided by the previous one. See (Dkt. No. 66); Consolidated Appropriations Act of 2020, Pub. L. No. 116-93, 113 Stat. 2317, Div. D, § 209 (Dec. 20, 2019); Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, 134 Stat. 1182, Div. F, § 210 (Dec. 27, 2020); Extending Government Funding and Delivering Emergency Assistance Act, Pub. L. No. 117-43, 135 Stat. 344, Div. A, § 101(6) (Sept. 30, 2021); Further Extending Government Funding Act, Pub. L. No. 117-70, 135 Stat. 1499, Div. A, § 101 (Dec. 3, 2021).
In the alternative, Plaintiff argues that it has authority to use funds appropriated for fencing "for expenditures rationally related to constructing fencing for border security purposes." (Dkt. No. 34 at p. 10; see also ¶¶ 21-26). Courts employ this test, though, to determine whether the government's "exercise of the eminent domain power is rationally related to a conceivable public purpose," which Defendant has never disputed. United States v. 0.996 Acres of Land, More or Less, Situate in Cameron Cty., State of Texas , 2009 WL 10691340, at *3 (S.D. Tex. Aug. 4, 2009) (quoting Hawaii Hous. Auth. v. Midkiff , 467 U.S. 229, 241, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) ); see (Dkt. No. 41 at ¶ 20). Of the cases cited by Plaintiff, only one uses the "rationally related" language on which its argument relies, and all are inapposite. In 0.996 Acres, supra , the owner of land taken by the government for a perpetual access easement over property owned by private parties, for a stated purpose identical to the one at issue here, objected that the taking had no public purpose because it condemned the property interest of one private owner for the benefit of another, and had no connection to securing the U.S.-Mexico border or constructing the border fence. 0.996 Acres , 2009 WL 10691340, at *1. The district court disagreed, first observing that the argument questioned the necessity of the taking to the stated purpose—a non-justiciable issue—and alternatively holding that, if it could reach the question, the taking was "rationally related to the broad authority and responsibility set out in 8 U.S.C. § 1103 and note," which serves a public purpose, such that the taking did not violate the Fifth Amendment's public use clause. Id. at *2-4. The question here is not whether Plaintiff effectuated the taking of the fee simple estate for a public purpose—Defendant agrees that it did—but whether the cited appropriations fund that purpose.
Plaintiff's additional cited authority also addresses the necessity of a particular taking, express or implied, and the non-justiciability of the issue, subject to a narrow exception when "the delegated official so overstepped his authority that no reasonable man could conclude that the land sought to be condemned had some association with the authorized project." United States v. 2,606.84 Acres of Land in Tarrant Cty., Tex. , 432 F.2d 1286, 1290 (5th Cir. 1970) ; see also United States v. 14.02 Acres of Land More or Less in Fresno Cty. , 547 F.3d 943, 949-53 (9th Cir. 2008) ; City of Davenport v. Three-Fifths of an Acre of Land, More or Less, Located in the City of Moline, Rock Island Cty., Ill. , 252 F.2d 354 (7th Cir. 1958) ; United States v. Certain Real Estate Lying on the S. Side of Broad St., City of Nashville, Tenn. , 217 F.2d 920, 924-27 (6th Cir. 1954). Plaintiff attempts to fit this case within the exception, but since the case does not invoke the rule, the exception does not apply. See (Dkt. No. 34 at ¶¶ 24-26). Plaintiff's argument that fence-related infrastructure is "rationally related" to fencing funded by the 2019 CAA lacks precedential support.
The consequence, though, is not dismissal. The parties point to no authority directly addressing the scenario at issue here: a taking with a stated purpose supported by statute, yet funded only in part by congressional appropriations cited in the original complaint and DOT. The parties’ citation to 162.20 Acres, supra , comes closest to supplying precedential guidance, insofar as the Fifth Circuit's decision addresses the deference given, in a proceeding to condemn land under the DTA for a public purpose, to restrictions imposed by Congress on the government's expenditure of funds for that purpose. In 162.20 Acres , the government filed a complaint and DOT, together with a deposit of estimated just compensation, to effectuate the taking of the defendant landowners’ property for a federal dam project. 162.20 Acres , 639 F.2d at 301. The property encompassed a townsite and building listed on the National Register of Historic Places. Id. The landowners filed answers raising various defenses, among them that the government had failed to comply with provisions of the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq. , requiring it to take into account the effect of any federal undertaking on any historic site prior to expending federal funds on the undertaking. Id. at 301-02. The district court ordered the defense stricken as legally immaterial, accepting that the government "is not required to comply with the [NHPA] before it can exercise the right of eminent domain" under the DTA. Id. at 301-02. The parties stipulated to just compensation, the district court entered final judgment, and the landowners appealed, arguing that the court erred in striking the "NHPA-compliance defense." Id. at 302.
In resolving this argument, the Fifth Circuit repeated the language on which Defendant's Motion and 2019 CAA-compliance defense rests—that a defendant landowner maintains the right to challenge "the validity of the taking for departure from the statutory limits"—but determined that alleged noncompliance with the NHPA did not render the taking in excess of statutory limits. Id. at 303-04 (quoting Catlin , 324 U.S. at 240, 65 S.Ct. 631 ). The Court reasoned that "[t]he filing of a declaration, by which title vests, is a neutral act vis-à-vis [the] NHPA," with which federal agencies "are compelled to abide ... regardless of the public or private character of the property involved." Id. at 304. "Further, where it has long been established that the role of the district court in [DTA] condemnations is limited to a bare consideration of the legal authority to take, and where the courts have been careful to refrain from considering matters of propriety, expediency, and policy with regard to the use of the property sought, ... only an express statement by Congress that NHPA noncompliance is a defense to a condemnation itself would be sufficient to achieve that result." Id.
Plaintiff did not, then, act in excess of statutory authority when it effectuated the taking, for this and other reasons unique to the case at hand. First, no party disputes that Plaintiff in fact complied with the 2019 CAA in condemning the property for the purpose of primary pedestrian fencing. Expenditures of the cited funds for this purpose and for related expenses not excluded by the 2019 CAA, including payment of just compensation to Defendant and others, align with the authority supplied by Plaintiff's Complaint and DOT. Also, Plaintiff is not irrevocably bound to its original stated authority and purpose, as it maintains latitude to amend its schedules. See FED. R. CIV. P. 71.1(i)(f) ("Without leave of court, the plaintiff may—as often as it wants—amend the complaint at any time before the trial on compensation."); United States v. 0.2853 Acres of Land, More or Less, Located in Dallas Cty., Tex. , 2019 WL 5000161, at *7 (N.D. Tex. Sept. 16, 2019), report and recommendation adopted , 2019 WL 4996855 (N.D. Tex. Oct. 7, 2019) (post-taking amendment of DOT permitted to clarify taking). Upon the Court's query, Plaintiff has represented that the 2019 CAA funds remain available to carry out its purpose as originally stated, with the caveat that the availability of these funds for new obligations expires on September 30, 2023. See (Dkt. No. 73); 2019 CAA at Div. A, Tit. II. To date, Plaintiff has not sought possession of the property, and the 2021 presidential proclamation and Plaintiff's subsequent willingness to revest title cast significant doubt on whether Plaintiff will use the 2019 appropriations even for fencing, much less any fence-related infrastructure excluded by the 2019 CAA, on the property. Even if Plaintiff undertakes the latter, again, Defendant acknowledges that Congress appropriated funds for "construction of a barrier system along the southwest border" in fiscal years 2020, 2021, and 2022, which span the date of the taking through the present. Against this backdrop, the Court declines to hold Plaintiff to maximum of its original purpose while restricting it to the minimum of the cited appropriations.
Even were it required to do so, 162.20 Acres provides a remedy other than dismissal. Although the Fifth Circuit upheld the district court's decision to strike the NHPA-compliance defense to the taking itself, it explained that its holding did not "imply that [the NHPA] is a serpent without fangs as to federal planners bent on disregard of its mandate[.]" 162.20 Acres , 639 F.2d at 304. Rather, "a district court having before it a condemnation case may, pursuant to the power granted under the [DTA], require compliance [with the statute restricting expenditure of federal funds] and either withhold possession by the government or take appropriate injunctive action to enforce its order." Id. at 305 ; see 40 U.S.C. § 3114(d)(1) (on filing of DOT, court "may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession"). The validity of the taking itself would remain unaffected.
III. Conclusion
For the foregoing reasons, the Court hereby ORDERS that Defendant's Motion to Dismiss the taking for lack of statutory authority is DENIED , and Plaintiff's Cross-Motion to Strike Defendant's 2019 CAA-compliance defense, as set forth in his Answer, is GRANTED .
(Dkt. No. 27 at ¶¶ 19-22).
SO ORDERED May 16, 2022, at McAllen, Texas.