general has statutory power to place law enforcement cooperation conditions on federal funding for law enforcement activities judge reales injunction should be reversed because the conditions at issue here are authorized by chapter one  one of title thirty four bowl five the special conditions language in one hundred one of six and by the byrne jag statute itself this condition power is one that the assistant attorney general has exercised for years without challenge by congress so focusing on a six judged by b you would ask for some special conditions that have been in place over the years there are in the twenty seven thousand grant for example fifty seven special conditions in the excerpts of record but special conditions thirteen twenty eight and twenty nine thirty four and thirty five all tell you what a few of those are thirteen for example requires funded training materials to comply with o j p principles for training materials special conditions twenty eight and twenty nine place information sharing in i t requirements on grant recipients so for example if you were engaged in any kind of information sharing you have to comply with what's called the o'jays global justice sharing initiative another would be special condition fifty seven uploading d n a results to code is the national database for d n a a special condition forty four you have to provide quarterly reports on training if you provide training on the use of force or racial or ethnic bias so this a power that has been used i will say that most of those council sound like they're quite germane to the the bird act itself took them over so what we're what we're doing reporting conditions quarterly reports  is sort of nothing out of the ordinary i mean that just that is that seems integral to the to the program the d n a result sounds a little more a little more interesting the training in information sharing quarterly reports really doesn't sound all that interesting well you are the quarterly reports are about use of force and racial and ethnic bias important issues in the criminal justice now these are things that the bureau of justice statistics is trying to collect i mean there are things here that are you that are useful that are sort of integral to the program but d o j isn't forcing here with the byrne well i would say more the broad range i program is about law enforcement generally and those things use of i think that's a pretty pretty high level of abstraction it is a high level because it is a broad grant and that is not unusual for these type of breakthrough grams they have brought purposes and then it's left to the expert even if agencies to fill out the details opposing counsel says especial conditions is a term of art and  response to that argument if you disagree it's a term of art where is it defined anywhere in the statute or regulations well take that into parts of georgia could i disagree that it is incorporating the term from the prior reg twenty eight c f r sixty six twelve there are several reasons for that one is that there's no indication anywhere in the statute in legislative history or in subsequent practice but that is what congress was doing in fact the regulation that regulation wasn't replaced for twelve years of congress have been doing that you would have assumed that the regulation would have been obsolete and when it was replaced in two thousand and fourteen but let's get some meaning to the terms national condition and otherwise i've only seen that term condition inherently seems to be something specific to a single grant as opposed to the standard conditions that would be applicable to all grant some trying to understand what is a this what should we look to to understand some special means designed for a particular purpose and here you can imagine that congress was thinking as is serving what's happening in the court criminal justice community and needs to change to emerge in the changing circumstances r you believe that congress authorized to enter any general to impose any condition whatsoever like some portion of the grant has to be used to build a hospital for example not in a condition whatever why not that would that would be a special condition that would be designed for a particular purpose and it would be outside of the statute like the hospital condition under the could of vs dollars has to be dreamy into the program at issue and this is not so surprising there are certainly hard no question that the a six delegation is a broad one but that is not so surprising l a in its brief concedes at page twenty pages twenty six and forty and the third circuit and the seventh circuit in their opinions on this issue they both say they all say congress knows how to engage in this kind of delegation and in fact has done that very thing in the violence against women statute so it just comes back to the question of whether a six has any meaning at all or has no me and my friends on the other side the seventh circuit the third circuit every court to engage with this question thus far has not been able to provide any meaning for a six other than the one we provide they simply say it's a perfect and that's quite surprising because this was not yet they  that has to be otherwise delegated in some area by the congress to the attorney general and then to by the attorney general to the assistant attorney general so it's straightforward and suspenders approach though you've got the you've got the belt and then somebody wanted to add the suspenders well including can be either a washer to earth time of expansion their case is saying both of those things and we've pointed to them in our prayers and i mean what the title of that section is duties and functions of the of the assistant attorney general and that just seems like of just a very broad very general we want to make sure that the the new agey for this for this section has the appropriate powers that he and she needs will remember this was an amendment in two thousand and six so this was not when the a g was created this came much later as the branch i program was introduced and ricotta fired in two thousand and six and rework this amendment specifically was put in if you look at the context the supreme all including and then everything that comes after that and we have not seen any opinion we've had on this case any meaning ascribed to that phrase and if you look at the context look at the house report the house report states plainly it says only one line about what this is doing and the house report says this amendment allows the assistant attorney general to place special conditions on all grants and determine priority purposes for formula grants so in context including is a word of expansion of is quite statues and it's also quite common and consistent with both the purpose of o j p and what it does which is to meet maintain liaison throughout the law enforcement community and be able to run react to emerging trends and what you often see  feedback loop here the a g and the staff of o j p are out there talking to law enforcement they see an emerging need they steer grant programs toward that and then some kind times congress reacts and makes it a permanent feature that's exactly what happened with the body armor special condition for example that body armor the requirement to purchase and the kind and the training the has to come with it all of that was imposed by o j p as a matter of policy for years before congress amended it and put it  in the statute so that is exactly the type of feedback that is going on constantly ask about the scope of the injunction is in this case the district court limited it to the parties that before the court is that correct yes it is ok and this and the seventh circuit did not and to the third circuit the nationwide injunction the third is limited to the city of philadelphia that's seventh circuit there's two different cases injunction pending any place else well conference of mayors applies although not nationwide to all of the members which covers many of the i'm just wondering whether that whether that moot this this proceeding if there's a if there's a nationwide injunction in place we can't countermand that study on behalf of the city of los angeles the government claims sweeping authority to impose any condition on burn jag funding based on a single residual including clods varied within a list of ministerial duties of the assistant attorney general as to appellate courts have already found that position finds no support in either the text the structure or the purpose of the statute which established the burn jag program congress designed burn jag as a mandatory formula grant carefully calibrated to provide automatic funding to states and localities subject to limited exceptions the d o j is reading of section one zero one zero two a six would subvert that mandatory formula and it's been rejected by each court to consider it that reading suffers from three fundamental flaws first a renter is meaningless a host of other provisions throughout the us code second it wrongly assumes that congress would speak on this issue would legislate on an issue of national importance and do so in a vague and bleak way in an otherwise bureaucratic provision but congress does not hide elephants and mouse holes and third the d o j has yet record there's a there's a reference to that d o j is required body armor as a condition of receiving a burn jag award so is that within the a six authority or within other authority found in the statute so again the a six authority we don't provide any independent grant of authority here that's ok where are all right now that we have to look to some another source of authority so where would the where would a bar be a body armor provision fit under so you have to look to the authorizing statute here it's the burn jag statute and that statute speaks to a couple of certifications and assurances there are very limited areas where the department may impose certifications or assurances and those also include a requirement that the agency can require other  as my colleague noted that was codified later but however if that same point there's clearly a nexus there to the use of the grant funds this is saying if you look at the statute it it's about equipment about supplies that's what these grant funds are supposed to be used for and there's a nexus there and so congress is part of why that saying that may be a condition that you can impose there is nothing similar to that with the notice and access conditions of opposing counsel makes the argument against your argument and the other circuits that your position would make the including language essentially superfluous and have no meaning at all what's your response to that your honor i don't clarifying function and where we learned that is from the text itself they use the word unclear include so so they delegated they said that the they could exercise all powers that were delegated of the attorney general and so the including cost as an a and anything under your interpretation is that what you're saying that congress amended the but to add something and have essentially no meaning now what congress did was clarify that where you otherwise why is that clarifying if you can delegate whatever authority he has so for example your out how does it change i just i need to understand what independent meaning it has because you say it's no doesn't authorize any independent grant of authority but it seems difficult to say congress acted to end the statute without adding any additional meaning so i need to understand that so your honor is an example let's turn to a neighboring which is where congress did impose authority on the d o j to impose terms and conditions on discretionary grounds so that's in one zero four four two i believe and so their congress said for discretionary grants within the same purview of the office of justice programs you may impose terms and conditions it was expressed on that this language including language would say where that authority otherwise exists to impose terms and conditions that includes the ability to impose special conditions and no effect well is your position my position is that this is a this is a duties and functions clause this is a almost a job description for the assistant attorney general there are a lot of things if you look through section one  one through five you know they may provide disseminate information he may meet maintain liaison those are all things that it wouldn't be the case that if he didn't if there wasn't this clause the assistant attorney general wouldn't be able to provide information on criminal justice the notion is that there is otherwise grants of authority or delegations of authority to the assistant attorney general and this language clarifies and illustrates one of those grants that otherwise exists in some portions of the statute it does not exist for the burn jag statute which contains nothing like the language in the neighboring statute that says you may impose terms and conditions on discretionary grants that's not the case here and again the  elsewhere in the statute so in certain formula grants there may be some room for discretion that allows you to have that priority purpose that's not the case for byrne jack this is a form which one doesn't it which one does allow for priority purpose and formula granted at that can you point me to that i'm not aware of any formula grant that currently opens for that or burnt out however there this is a mandatory formula grant in which there's very little room for discretion anywhere there's if you look at one zero one five two congress said to the attorney general you must make laureates in accordance with the statutory formula set forth in one zero one five six one one five six contains another command it says the attorney general shall allocate pursuant to the formula set forth there in and there's only two criteria listed there a state's population and violent crime rate there are very limited to deviations permitted  expressly the attorney general has discretion over the form of the application the attorney general has the ability to impose the specified certifications and assurances set forth in the burn jag statute and where congress wanted to allow the attorney general to withhold money based on compliance with other federal objectives it said soso expressly ten percent withholding for noncompliance with sarna up to ten percent for failure to comply with the death in custody reporting act and the diogenes reading presents a number of statutory anomalies because how can it be that congress said you make the docked ten percent for sorta but under one zero one zero two do you take it withhold one hundred percent for that same non compliance those two don't gel and there's haven't been any explanation from the government on how to explain those other provisions that would be rendered meaningless if it's reading of what i want to go to was accepted and again the purpose of the statutes we've talked about the text which very clearly limits authority to specific areas and doesn't mention civil immigration enforcement in any regard and then the structure of the statute this is a mandatory formula grant with very limited deviations permitted on a number of other places where congress expressly said you have the right to impose terms and conditions that's not the case here for the purpose of the statute this is a statute not just about law enforcement this is a statute about empowering localities to have flexibility to determine their own priorities and this goes against that this is saying you must have a policy you must have a law in place that does this if you look at some of these other conditions the other conditions that my colleague referenced a number of them deal with the use of grant funds even the d n a condition which judge by be noted deals with if you use the grant funds for this d collection purpose then report that data there's a there's a tie there to the information and how the program and the funding is being used and so there's authorization there in the statute what's telling is that with one zero one  to the d o j have never relied on that authority before this year we noted in our briefs that if you compare the twenty sixteen grand to the twenty seventeen grand in the twenty sixteen grant d o j did not include one zero one zero two as one of the list of its statutory authority it only added that in twenty seventeen so the house of cards will not fall if one zero one two is rejected as a source of its authority the d o j has been imposing historically these but this is very different this is using the control over grant funding to leverage another agency's policy objectives and that feels very different counsel is there does does this court have any obligation to apply could an argument they could have made and probably waived by not arguing it anywhere that's right your honor and i think we believe that the statute is not ambiguous in any respect it's very clear what is authorized and what isn't and the notice and access conditions clearly fall outside the scope of what's authorize and the agency the change in position the the new reliance on one on one or two it's hardly surprising they're not relying on chevron deference given that there is now an entirely new statutory authority that was just found  have not been challenge so we don't have any court rulings on other conditions that they made as a condition of getting the jack grant that's my understanding yes your honor that the other this is the first time that the conditions imposed on the gram funding have unchallenged that is my understanding or so i'd like to briefly address as wow the question of whether the burn jack statute itself authorizes these conditions and the answer clearly they do not the the statute as i noted has very limited areas in which the attorney general is given discretion one is the form of the application to is our requirement that programatic or financial information can be provided to the agency but again that is information about how the funds are being used what is what is the use of these funds how are they being handled and what is the program itself that's being funded doing so in the las case that's the clear program which is a collaborative program a highly innovative locally designed program about coming up with local solutions for criminal and criminal justice needs to the city of los angeles there's no authority elsewhere in the statute for these conditions in any respect that d o j in its brief cites one zero one five three a five c i believe for its access condition but that has been squarely rejected by the second circuit in the third circuit and the notion that appropriate court nation that there has been appropriate court nation that's not something that requires ongoing court nation with the federal government this is about the form of the application again the attorney general's discretion is limited to the application and the very clearly specified indicators in the statute of what the department may do and there's nothing like the notice and access condition anywhere in there were in any other applicable from enacting these conditions throughout i don't think we're relying on that as an outright proca bishan because i think there is no express authorization which is what would need to be the case in order for this to not be altered fear but one of two to eight provide some indicators that congress did not expect that this sort of funding were still be used to issue any sort of directive or command or in any way control how local governments are operating their law enforcement agencies and that's very much what the notice and access conditions do and so one of two to eight further tells us that congress did not intend for these to these sorts of conditions to be within the realm of what is authorized w other grant programs in addition to the burn your honor i think it would apply to anything within that chapter i believe it says nothing with nothing in this chapter so any other grants within that authorization thank you i'd like to address judge a cue to what you had asked me at the outset and i didn't get a chance to finish but you asked about the regulation and the meaning of the term special and i just want to point out with respect to that regulation there are several reasons to believe it is not what how congress was the final special conditions first of all o j p immediately after it got this new authority in two thousand and six began using the term special conditions for all of those general conditions that applies to all grants so there is an unbroken chain of agency action mean well i think it means the court to the extent arguments are persuasive the but when there's interest i mean the two that you're basically operating on at chevron step one that is that you believe that this is unambiguous and your arguments going to rise or fall if you can bet you go on if i just make sure i understand this correctly we are arguing that when congress amended a six in two thousand and six that act had meaning and what you didn't hear from my friend is any meaning for that term and the supreme court has said nine s we still when congress amends a statute courts presume it is doing something that those words have meaning and my friend was challenge and said what meaning could this term possibly have and l a can give it  of the only possible meaning we've ever heard is an incorporated the c f r and i just want to point out that the term special conditions has never been used that way o j p has never used that way and when that reg was replaced in twenty fourteen long before this became an issue  twenty fourteen the reg now says specific conditions it doesn't say special conditions and in special condition fifteen o j p actually deals with high risk grantees as it has for years and it says if you are a high risk grantee we will place additional requirements so this idea that there is this term of art special conditions that deals with high risk grantees it has never actually existed in the administrative world i think i'm over my time that i'll submit all right and thank you very much