Massachusetts Coalition for Immigration Reform v. U.S. Citizenship and Immigration Services

• Court: District Court, District of Columbia
• Decided: September 18, 2025
• Docket: Civil Action No. 2020-3438
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MASSACHUSETTS COALITION FOR IMMIGRATION REFORM, et al.,

Plaintiffs,

v. Case No. 1:20-cv-03438 (TNM)

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

Steven Smith, an Arizona cattle rancher, sued the Biden Administration for canceling

some of the first Trump Administration’s border policies without first assessing the

environmental impact. After a bench trial, the Court found for Smith and ordered briefing on the

appropriate remedy. But before briefing was complete, the 2024 presidential election changed

the landscape. President Donald Trump returned to the White House and reversed his

predecessor’s decisions—the same decisions the Court found procedurally flawed.

This is good news for Smith. He has gotten what he wanted all along: The first Trump

Administration’s border programs are back. Their reimplementation washes away the

environmental risks Smith faced from the hasty terminations. The remaining question is whether

Smith’s vindication in the political arena moots his legal vindication.

Smith believes the case is still live, and relief remains available. Not so. The disputed

actions are dead and gone, and none of Smith’s arguments to the contrary can resuscitate the

case. His proposed relief would affect only his past rights, not his present rights or his rights in the future. So the Court will deny Smith’s motion for injunctive and declaratory relief and

dismiss the case as moot.

I.

The Court has recounted the sprawling facts here many times. See Mass. Coal. for

Immigr. Reform v. DHS (“MCIR I”), 621 F. Supp. 3d 84, 88–90 (D.D.C. 2022); Mass. Coal. for

Immigr. Reform v. DHS (“MCIR II”), 698 F. Supp. 3d 10, 16–22 (D.D.C. 2023); Mass. Coal. for

Immigr. Reform v. DHS (“MCIR III”), 2024 WL 2208206, at *1 (D.D.C. May 15, 2024); Mass.

Coal. for Immigr. Reform v. DHS (“MCIR IV”), 752 F. Supp. 3d 13, 15–27 (D.D.C. 2024). A

short recap suffices for today’s purposes.

This case started off with many Plaintiffs and many claims. MCIR IV, 752 F. Supp. 3d at

16. When all was said and done, one Plaintiff prevailed on two claims. See id. After a two-day

bench trial, the Court found that Smith was harmed by decisions from the Department of

Homeland Security (“DHS”) to halt construction of the border wall and rescind the Migrant

Protection Protocols (“MPP”) without assessing the environmental impact. Id. The termination

of these programs caused an uptick in the number of illegal immigrants trespassing on Smith’s

land. See id. at 18–20. With increased immigration came environmental issues—water theft and

discarded trash littering Smith’s property. See id. Both created health risks for Smith’s cattle.

See id.

The Court concluded that the Government’s termination of border wall construction and

the MPP were procedurally improper. See id. at 16. Both were “major Federal actions” within

the meaning of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(C), so the

Government was required to analyze the environmental effects of those decisions before

implementing them. See MCIR IV, 752 F. Supp. 3d at 17, 34. But it did not, so the Court ruled

2 for Smith on his two Administrative Procedure Act claims. See id. at 34; Am. Compl., ECF No.

17, at 104–06 (Counts II and III).

The Court then requested briefing on the appropriate remedy. MCIR IV, 752 F. Supp. 3d

at 34. Smith asked the Court to: (1) “vacate the termination directives” until the Government

complied with NEPA; (2) enter declaratory judgment that “DHS was obligated to conduct an”

environmental assessment “before terminating” the programs; and (3) enter an injunction

requiring DHS to “initiate a reasonable planning process to . . . expeditiously restart border wall

construction and the MPP.” Mot. Inj., ECF No. 82, at 16. The Government objected to each of

these proposals. See Mot. Inj. Opp’n, ECF No. 83, at 7–9. It maintained that, at most, the Court

should remand for DHS to comply with NEPA. See id. at 30.

But before the remedies question was fully briefed, President Trump prevailed in the

2024 presidential election. With the new Administration came new priorities and a return to

previous immigration policies. See Pl.’s Mootness Br., ECF No. 92, at 2, 3 (acknowledging that

“the Second Trump Administration has re-instated policies from the First Trump

Administration” and “reversed the termination of MPP and border wall construction”). Upon

taking office, President Trump immediately declared that preventing illegal immigration was

“one of [his] most important obligations” and promised to “marshal all available resources and

authorities to stop” it. Exec. Order No. 14165, 90 Fed. Reg. 8467 (Jan. 20, 2025). In line with

this, he directed DHS to “take all appropriate action to deploy and construct temporary and

permanent physical barriers to ensure complete operational control of the southern border of the

United States.” Id. at 8468. He also instructed DHS to “take all appropriate action to resume the

Migrant Protection Protocols.” Id.

3 The gears of government turned swiftly to implement the President’s directives. The

Secretary of Homeland Security began issuing waivers of “certain laws, regulations, and other

legal requirements in order to ensure the expeditious construction of barriers and roads in the

vicinity of the international land border in the state of California.” See 90 Fed. Reg. 15153 (Apr.

8, 2025) (San Diego Sector); 90 Fed. Reg. 23534 (June 3, 2025) (El Paso Sector). Similar

waivers followed for barriers in Arizona and Texas. See 90 Fed. Reg. 23946 (June 5, 2025)

(Tucson Sector in Arizona); 90 Fed. Reg. 23535 (June 3, 2025) (Yuma Sector in Arizona); 90

Fed. Reg. 29574 (July 3, 2025) (Rio Grande Valley Sector in Texas); 90 Fed. Reg. 41589 (Aug.

26, 2025) (Rio Grande Valley Sector in Texas). Rodney Scott, who had been Smith’s star

witness at trial, became Chief of the U.S. Border Patrol. See MCIR IV, 752 F. Supp. 3d at 19–20

(recounting his testimony); U.S. Customs and Border Protection, “Rodney S. Scott,

Commissioner” (June 23, 2025) [https://perma.cc/E4NC-568R].

Next came appropriations from Congress. The One Big Beautiful Bill Act, signed this

summer, allocates over $46.5 billion for construction of the border wall. Pub. L. No. 119-21,

139 Stat. 72, 357 (July 4, 2025). DHS announced in a press release that it has already begun

construction and has plans to build hundreds of miles of border walls in total. See Def.’s

Mootness Br., ECF No. 93, at 3; Dep’t of Homeland Security, “Six Months of Keeping America

Safe Under President Trump and Secretary Noem” (July 20, 2025) [https://perma.cc/SGN8-

8RC3]. The same press release also noted that “President Trump immediately reinstated [the]

‘Remain in Mexico’” policy, otherwise known as the MPP. Id.; see Mot. Inj. at 6.

This political sea change drove the parties to evaluate the possibility of an out-of-court

settlement. See Joint Mot. to Cont. Status Conf., ECF No. 85. Those negotiations fell through,

so the Court ordered the parties into mediation. Status Conf. Tr., ECF No. 87, 3:11–17; 4:20–25.

4 The Court forecasted that if mediation failed, briefing on mootness might be necessary. See id.

at 2:15–22; 5:11–13. Mediation failed, prompting the Court to direct simultaneous briefing on

mootness and potential remedies. See Joint Status Report, ECF No. 91; Min. Order dated July 1,

2025.

In his mootness briefing, Smith maintains that relief is still available. On top of his

previous proposals, he says the Court can: (1) order DHS to conduct NEPA analysis in the future

if it again seeks to terminate border wall construction or the MPP; and (2) order NEPA analysis

of the Biden Administration’s past decisions because it could help future decisions about border

security. See Pl.’s Mootness Br. at 4, 6–7. The Government counters that the case is fully moot

now and no further relief is available. See Def.’s Reply, ECF No. 94. Briefing is complete, so

the Court turns to these issues.

II.

“Derived from Article III, the mootness doctrine ensures that federal courts decide only

actual, ongoing controversies.” Pub. Citizen, Inc. v. FERC, 92 F.4th 1124, 1127 (D.C. Cir.

2024) (cleaned up). “[W]hen the issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome,” a case is moot. Samma v. Dep’t of Def., 136 F.4th 1108,

1113 (D.C. Cir. 2025). This limitation keeps courts from overstepping “their constitutionally

assigned role” and prevents them “from rendering impermissible advisory opinions.” Pub.

Citizen, 92 F.4th at 1127–28.

Mootness is fluid. “Even where litigation poses a live controversy when filed, a federal

court must refrain from deciding the dispute if events have so transpired that the decision will

neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting

them in the future.” Id. Put simply, “[t]he central question of all mootness problems is whether

5 changes in circumstances that prevailed at the beginning of the litigation have forestalled any

occasion for meaningful relief.” Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers & Helpers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987) (cleaned up).

III.

This case is moot. Any further action by this Court regarding the Biden Administration’s

now-reversed policy cancellations “will neither presently affect the parties’ rights nor have a

more-than-speculative chance of affecting them in the future.” Pub. Citizen, 92 F.4th at 1128.

As the D.C. Circuit has “repeatedly recognized, the government’s abandonment of . . .

challenged [conduct] is just the sort of development that can moot an issue.” Samma, 136 F.4th

at 1113 (cleaned up). Such is the case here.

Smith asked the Court to reverse the cancellation of border wall construction until the

decision underwent NEPA analysis. But the cancellation has been rescinded and the

Government is moving full steam ahead on its construction efforts. See Def.’s Mootness Br. at

2–4. Smith also wanted the Court to undo the termination of the MPP pending a NEPA

assessment. But the MPP has been reinstated. See id. There is no reason for this Court to order

NEPA analysis of actions the Government is no longer pursuing or pause the implementation of

decisions the Government has already walked back. See Akiachak Native Cmty. v. United States

Dep’t of Interior, 827 F.3d 100, 106 (D.C. Cir. 2016) (“Because that [policy cancellation] no

longer exists, we can do nothing to affect [the plaintiff’s] rights relative to it, thus making this

case classically moot for lack of a live controversy.”); cf. Trump v. Hawaii, 583 U.S. 941 (2017)

(holding that a challenge to provisions of an executive order that “expired by their own terms”

was moot (cleaned up)).

6 Though his victory came through political channels rather than the judiciary, Smith has

won. He has the outcome he wanted all along and the environmental risks posed by the

cancellation of these programs are no more. See Schmidt v. United States, 749 F.3d 1064, 1068

(D.C. Cir. 2014) (“[Mootness] occurs when, among other things, the court can provide no

effective remedy because a party has already obtained all the relief that [he] has sought.”).

Smith disagrees. He maintains this case is still live because: (1) voluntary cessation

triggers a heightened standard that prevents mootness; (2) the capable of repetition yet evading

review exception to mootness applies; and (3) the Court can still provide meaningful relief. The

Court evaluates and rejects these arguments in turn.

A.

Start with voluntary cessation. If a party voluntary stops its challenged behavior to short-

circuit litigation, it triggers a “heightened voluntary-cessation standard” rather than the “ordinary

mootness test.” Pub. Citizen, 92 F.4th at 1128, 1130. Under that standard, the case remains live

unless it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to

recur.” Id. at 1128 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 190 (2000)). This “rule traces to the principle that a party should not be able to evade

judicial review . . . by temporarily altering questionable behavior.” City News & Novelty, Inc. v.

City of Waukesha, 531 U.S. 278, 284 n.1 (2001). In other words, it prevents litigants from

gaming the system.

But the voluntary cessation doctrine “does not apply automatically” any time a defendant

decides to cease challenged conduct. 1 Pub. Citizen, 92 F.4th at 1128. It instead requires some

1 The Government does not make this specific argument, but “it is appropriate for the Court to evaluate mootness based on its own assessment of the record.” Sharp v. Rosa Mexicano, D.C., 7 “arguable manipulation of [the Court’s] jurisdiction.” Id.; see also Alaska v. Dep’t of Agric., 17

F.4th 1224, 1229 (D.C. Cir. 2021) (“The established law of this circuit is that the voluntary

cessation exception to mootness has no play when the agency did not act in order to avoid

litigation.” (cleaned up)); Freedom From Religion Found., Inc. v. Abbott, 58 F.4th 824, 833 (5th

Cir. 2023) (“Without evidence to the contrary, we assume that formally announced changes to

official governmental policy are not mere litigation posturing.” (cleaned up)).

The Court has no reason to question the sincerity of the Government’s policy decisions.

In fact, Smith himself makes no claim that the Government is trying to game the system. See

Pl.’s Mootness Br. at 3. At most, he points out that DHS has acknowledged the MPP policy may

one day end. Pl.’s Reply at 3 (citing DHS’s Draft Programmatic Environmental Assessment for

Actions Related to the Migrant Protection Protocols (MPP) Program (“MPP Environmental

Assessment”), ECF No. 92-4, at 10).

Announcing plans to revert policies post-litigation can, at times, signal manipulation. See

United States v. Sanchez-Gomez, 584 U.S. 381, 386 n.* (2018) (finding voluntary cessation

when the “Government represent[ed] . . . that [it] intend[ed] to reinstate its [challenged] policy

once it [was] no longer bound” by an adverse judicial ruling); City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 & n.11 (1982) (finding voluntary cessation when a city

“announced . . . [its] intention” to “reenact[] precisely the same [challenged] provision if [a]

District Court’s judgment were vacated”). But when read in context, even a cynical

interpretation of DHS’s words does not allow for that conclusion here. The DHS document

Smith cites is, somewhat ironically, a NEPA assessment for the MPP’s reimplementation. See

LLC, 496 F. Supp. 2d 93, 97 (D.D.C. 2007); see also Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994) (“[Courts] are obliged to address the issue sua sponte because mootness goes to the jurisdiction of th[e] court.”). 8 MPP Environ’l Assm’t at 10 (citing NEPA as its basis). It tries to gauge the MPP’s potential

environmental impact over the program’s full lifecycle but clarifies that “DHS has not

established a temporary or permanent cessation date for the MPP program.” Id. at 19. Thus, the

possible future termination of the MPP is speculative and there is no indication the Government

plans to cancel it again the moment litigation concludes. One out-of-context statement about the

MPP’s projected duration is not enough to conjure the specter of bad faith, especially where

Smith himself does not see it.

More, there is ample reason to believe the Government’s cessation was not done to

manipulate jurisdiction. Instead, it was driven by political considerations wholly unrelated to

this case. Resuming stricter immigration policies was a major campaign issue for President

Trump in the 2024 election. See Exclusive: Biden Races to Sell Off Border Wall Parts Before

Trump Takes Office, Daily Wire (Dec. 12, 2024) 2 [https://perma.cc/5C9M-632M] (“Trump made

clear during his campaign that he intends to finish construction of the border wall.”). Upon

retaking the White House, the Trump Administration immediately declared its intent to make

good on those promises. See Exec. Order No. 14165. Nothing about this behavior indicates the

Government resumed border wall construction or the MPP to stymie this litigation. Indeed,

given the President’s longstanding views on immigration and the border wall, any suggestion

that he has changed tactics because of this case is risible.

2 “[I]n the APA context, the Court may consider documents in the public record of which the court may take judicial notice.” ITServe All., Inc. v. Dep’t of Homeland Sec., 590 F. Supp. 3d 27, 41 (D.D.C. 2022). The Court looks to this particular article because Smith cited it in his remedies reply brief. See ECF No. 84 at 8. 9 In short, “[t]his is not a case in which a party sought to strategically avoid judicial review

by ceasing a challenged activity,” Samma, 136 F.4th at 1114, so the “ordinary mootness test”

applies instead of the heightened voluntary cessation standard. Pub. Citizen, 92 F.4th at 1130.

Even if the Court did apply the heightened standard, the case would still be moot. The

Government has carried its burden to show that: “(1) there is no reasonable expectation that the

alleged violation[s] will recur, and (2) interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation[s].” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir.

2008) (cleaned up).

As the Government correctly notes, any possibility of repetition hinges on a tenuous

series of assumptions. See Def.’s Reply at 3. The Court would first need to assume the next

presidential election will usher in an administration hostile to the programs. See Alaska, 17 F.4th

at 1229 (“Intervening events, such as elections . . . are unpredictable.”). Next, it would have to

theorize that the future administration will fully terminate the programs rather than revising or

replacing them. See id. (“The content of any future regulation is currently unknowable.”). Then,

it would need to presuppose that DHS will not conduct any NEPA assessments of those future

actions. 3 And finally, the Court would need to speculate that future immigration conditions

remain such that Smith will again be injured and have standing to challenge DHS’s decision.

See MCIR IV, 752 F. Supp. 3d at 28–30 (discussing Smith’s standing). “It takes more than such

quixotic speculation to save a case from mootness.” Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 920 F.3d 1, 15 (D.C. Cir. 2019).

3 This is an especially tenuous assumption for the MPP because DHS has shown it would probably do further NEPA analysis before ending the program. See MPP Environ’l Assm’t at 13, 20 (explaining that if the MPP ends, “reevaluation of these [environmental] effects would likely be required” and “[s]ubsequent analysis would be completed as needed.”).

10 Smith retorts that no legal barriers affirmatively prevent repetition, so the Government

cannot show it is impossible. See Pl.’s Mootness Br. at 3; Pl.’s Reply, ECF No. 95, at 3. But

“the mere power to reenact a challenged policy is not a sufficient basis on which a court can

conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence

indicating that the challenged policy likely will be reenacted.” Larsen, 525 F.3d at 4 (cleaned

up). The Court finds no such evidence here. On these facts, there is no reasonable expectation

that the alleged violations will recur.

As for the second requirement under the heightened voluntary cessation standard, the

reinstatement of these programs has “eradicated the effects of” the previous cancellations by

undoing the increased environmental risks Smith faced. Larsen, 525 F.3d at 4. Thus, the Court

finds that the heightened standard for voluntary cessation does not apply here, but even if it did

the case would still be moot.

B.

Next, consider the capable of repetition yet evading review exception. See Pl.’s

Mootness Br. at 3. The case is not moot if Smith can “demonstrate that (1) the challenged action

is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is

a reasonable expectation that [he] would be subjected to the same action again.” Del Monte

Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) (cleaned up). But this is

a “narrow exception for quick-burning disputes,” Safari Club Int’l v. Jewell, 842 F.3d 1280,

1288 (D.C. Cir. 2016), and it applies only in “exceptional circumstance[s].” Del Monte, 570

F.3d at 322.

As Plaintiff, Smith has the burden of showing this exception’s applicability. Native Vill.

of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021); see also Del Monte, 570

11 F.3d at 322. And “the recurring legal wrong must be defined in terms of the precise controversy

it spawns.” L’Assoc. des Americans Accidentels v. U.S. Dep’t of State, 633 F. Supp. 3d 74, 80

(D.D.C. 2022) (cleaned up).

Take the MPP first. Smith contends that “litigating the appropriate procedural steps

required for . . . termination of MPP is a process that can easily outlast the program.” Pl.’s Reply

Br. at 3. But the MPP is an ongoing policy without a set duration. See MPP Environ’l Assm’t at

13 (“DHS cannot, with reasonable certainty, establish a firm future cessation date for the MPP

program.”). If Smith means a future administration could terminate the MPP before litigation

concludes, that misunderstands the test. “Circuit precedent requires us to determine whether the

activity challenged is ‘inherently’ of a sort that evades review.” Campbell v. Clinton, 203 F.3d

19, 34 (D.C. Cir. 2000) (emphasis added). Typically, this means programs that last for less than

two years. See Burlington N. R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir. 1996)

(“[B]oth Supreme Court and circuit precedent hold that orders of less than two years’ duration

ordinarily evade review.”); see, e.g., Del Monte, 570 F.3d at 322 (applying exception where a

challenge to a one-year annual license could not be “fully litigated before [its] expiration” each

year). The MPP does not fit that bill. Given its indefinite nature, there is no reason to find its

cancellation would evade review. Instead, if the Government again cancels the MPP in the

future sans NEPA review, the cancellation “will be subject to judicial review at that time.” Am.

Bar Ass’n v. F.T.C., 636 F.3d 641, 648 (D.C. Cir. 2011).

As for border wall construction, Smith contends only that it is capable of repetition. See

Pl.’s Reply at 3–4. He makes no claim that it can evade review. See id. To the contrary,

Congressional appropriations indicate that border wall construction will not be inherently short

in duration. See Pub. L. No. 119-21, 139 Stat. 72, 357 (July 4, 2025) (appropriating construction

12 funds through 2029); id. at 360 (appropriating $10 billion for border wall construction grants to

state and local governments through 2034).

In sum, Smith cannot satisfy the first prong of the exception—capable of evading

review—for either the MPP or the border wall. The challenged actions here are not the kind of

“quick-burning disputes” that escape judicial review. Safari Club, 842 F.3d at 1288; see also

Def. Reply at 3 (making this point). The MPP has an indefinite duration, so it is not “inherently

of a sort that evades review.” Clinton, 203 F.3d at 34 (cleaned up). And Smith makes no effort

to show that the border wall issue is capable of evading review. In any event, he could not make

such a showing, for substantially the same reasons as discussed above. Because he “cannot

satisfy the first” prong of the exception for either program, “we need not examine the second.”

S. Co. Servs. v. FERC, 416 F.3d 39, 43 (D.C. Cir. 2005). Smith has not shown the “exceptional

circumstance[s]” necessary for applying the exception. Del Monte, 570 F.3d at 322.

C.

Finally, consider whether meaningful relief is still available. Smith maintains that

vacatur of the now-defunct policies would still provide relief “[g]iven the legal uncertainty of

voluntary reversal of the unlawful policies.” Pl.’s Mootness Br. at 6. He points out that separate

litigation has waylaid full reinstatement of both policies despite the Trump Administration’s

swift efforts. 4 See id. Because of this, he believes vacatur “has the potential to hasten the

restoration of these policies by removing the impediment of potential court orders based on

4 The MPP is subject to dueling judicial stays. One court stayed the Biden Administration’s rescission, while another court stayed the Trump Administration’s reimplementation. See Def.’s Mootness Br. at 3–4. The Ninth Circuit limited the scope of the reimplementation stay pending appeal, so it currently only applies to the parties in that case. See Immigr. Defs. L. Ctr. v. Noem, 2025 WL 2017247, at *14 (9th Cir. July 18, 2025). The waiver to expedite border wall construction in Arizona is also being challenged. See Pl.’s Mootness Br. at 5–6. 13 subsequent challenges.” Pl.’s Reply at 2. But this potential relief is opaque and relies on a

speculative daisy-chain of future events that may or may not occur in separate litigation. The

contingent nature of the relief highlights that it does not “have a more-than-speculative chance of

affecting [Smith’s rights] in the future.” Pub. Citizen, 92 F.4th at 1128; see also United States v.

Juv. Male, 564 U.S. 932, 937 (2011) (“True, a favorable decision in this case might serve as a

useful precedent for [Smith] . . . But this possible, indirect benefit in a future lawsuit cannot save

this case from mootness.”).

Smith next argues the Court could issue a forward-looking order directing DHS to

conduct analysis before it “ever repeats the challenged actions.” Pl.’s Mootness Br. at 6. But “it

would be entirely inappropriate for this court to issue an advisory opinion to guide the agency’s”

hypothetical future decision making. Am. Bar Ass’n v. F.T.C., 636 F.3d 641, 648 (D.C. Cir.

2011) (cleaned up). The Court will not speculate on what NEPA may or may not require in

relation to a currently non-existent agency action. If subsequent DHS decisions spark legal

concerns, a court can evaluate the concerns when they ripen.

Smith also says the Court could order NEPA analysis of the Biden Administration’s past

decisions, despite their reversal by the Trump Administration. “[B]order security is never

finished once and for all,” so Smith believes evaluating the past decisions could help inform

future border security programs. Pl.’s Mootness Br. at 6. But NEPA is not a tool for abstract

guidance. “Importantly, the textually mandated focus of NEPA is the ‘proposed action’—that is,

the project at hand.” Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497,

1515 (2025). It is “not applied retrospectively to completed projects.” Nat’l Wildlife Fed’n v.

Appalachian Reg’l Comm’n, 677 F.2d 883, 889–90 (D.C. Cir. 1981). And it certainly “does not

require agencies to commence . . . reviews of projects not actually proposed.” Delaware

14 Riverkeeper Network v. FERC, 753 F.3d 1304, 1318 (D.C. Cir. 2014). Simply put, under the

plain terms of NEPA, there is nothing left here to review.

Smith tries to get around these limitations by suggesting the Court could treat “border

security policies” as one unified project. Pl.’s Mootness Br. at 7. Then, the Court could order a

programmatic NEPA review of the border security program and its “many related” components,

including the ones he challenged. See id. But as the Government correctly notes, Smith already

tried this approach earlier in litigation and the Court rejected it. See Def.’s Reply at 3 n.2. In

Count XI, Smith tried to use the APA to challenge DHS’s failure to conduct NEPA analysis for a

program he styled as the “Biden Population Actions.” Am. Compl. ¶¶ 253–57. But the

“program” was not really a program. It was a “lump[ed] together” collection of discrete actions

on border security, each of which required its own individual challenge. MCIR I, 621 F. Supp.

3d at 97. So the Court dismissed the claim as unreviewable under the APA because “labeling

diffuse actions a ‘program’ does not a program make.” Id. The same holds true here. The Court

will not entertain Smith’s renewed efforts to treat the discrete challenged actions as part of a

unitary border security “program.”

That leaves Smith’s request for declaratory relief. He wants a judgment declaring that

the Government should have conducted NEPA analysis before the now-reversed program

terminations. “[A] plaintiff’s challenge will not be moot where it seeks declaratory relief as to

an ongoing policy.” Del Monte, 570 F.3d at 321. But if a plaintiff “merely attacks an isolated

agency action, then the mooting of [a] specific claim moots any claim for a declaratory judgment

that the specific action was unlawful.” J. T. v. Dist. of Columbia, 983 F.3d 516, 522 (D.C. Cir.

2020) (cleaned up).

15 Smith’s challenges were directed at two isolated actions taken without NEPA analysis:

Cancellation of border wall construction and termination of the MPP. Neither decision is

ongoing, and purely retrospective declaratory judgment is not an option. See Bayer v. Neiman

Marcus Grp., Inc., 861 F.3d 853, 868 (9th Cir. 2017) (“[D]eclaratory judgment merely

adjudicating past violations of federal law—as opposed to continuing or future violations of

federal law—is not an appropriate exercise of federal jurisdiction.”); see also Larsen, 525 F.3d at

4 (“[A]ny injunction or order declaring [a rescinded policy] illegal would accomplish nothing—

amounting to exactly the type of advisory opinion Article III prohibits.”).

Smith tries to avoid this outcome by arguing the Government has an “underlying practice

of not performing the analysis required by NEPA.” Pl.’s Mootness Br. at 2. But his only

substantiation is one other unrelated case in which the Government failed to perform NEPA

analysis. See id. That is not enough. More, his position is undermined by the fact that DHS has

conducted NEPA analysis on its most recent action involving the MPP. See Pl.’s Mootness Br.

at 4 (acknowledging this); MPP Environ’l Assm’t.

Thus, on these facts, “a grant of declaratory relief would not achieve any useful

objective.” Spivey v. Barry, 665 F.2d 1222, 1235 (D.C. Cir. 1981). The case remains moot.

IV.

Smith worries that “abandon[ing] this case at such an ‘advanced stage’ would prove

‘more wasteful than frugal.’” Pl.’s Mootness Br. at 3 (quoting Friends of the Earth, 528 U.S. at

192). Yet “[t]his argument from sunk costs does not license courts to retain jurisdiction over

cases in which one or both of the parties plainly lack a continuing interest.” Friends of the

Earth, 528 U.S. at 192. The controversy fueling this case met its demise in the political arena,

16 and Smith emerged victorious. On these facts, there is no continuing dispute and no relief the

judiciary can offer Smith that the political branches have not already given him.

For these reasons, the Court will deny Smith’s motion for injunctive and declaratory

relief and will dismiss the case as moot. A separate Order will issue today.

2025.09.18 11:50:55 -04'00' Dated: September 18, 2025 TREVOR N. McFADDEN, U.S.D.J.