U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−06471−ER

APPEAL,ECF

State of New York et al v. United States Department of Justice et Date Filed: 07/18/2018

al

Jury Demand: None

Assigned to: Judge Edgardo Ramos

Nature of Suit: 899 Other Statutes:

Related Case: 1:18−cv−06474−ER

Administrative Procedures Act/Review or

Cause: 28:2201 Constitutionality of State Statute(s)

Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff

State of New York

represented by Lourdes Maria Rosado New York Civil Liberties Union 1 Whitehall Street Ste 3rd Floor New York, NY 10004 212−607−3316 Email: lourdes.rosado@ag.ny.gov TERMINATED: 09/26/2019 LEAD ATTORNEY

Conor P. Duffy NYS Office of the Attorney General 28 Liberty Street New York, NY 10005 212−416−8637 Email: conor.duffy@ag.ny.gov ATTORNEY TO BE NOTICED

Jessica A. Attie New York State Office of The Attorney General 28 Liberty St. New York, NY 10522 (917)−210−2200 Email: jessica.attie@ag.ny.gov TERMINATED: 09/26/2019

Lilia Isobel Toson 199 Water Street 3rd Floor New York, NY 10038 212−577−7987 Email: Lilia.Toson@ag.ny.gov TERMINATED: 09/26/2019

Matthew Colangelo New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212 416 6057 Fax: 212 416 6007 Email: Matthew.Colangelo@ag.ny.gov ATTORNEY TO BE NOTICED

Nancy Milagros Trasande New York State Office of the Attorney General (28 Liberty) 28 Liberty Street New York, NY 10005

Plaintiff State Of Connecticut
Plaintiff State of New Jersey

(212) 416−8905 Email: nancy.trasande@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Mark Francis Kohler Connecticut Office of the Attorney General 165 Capitol Avenue Ste 5000 Hartford, CT 06106 860−808−5020 Fax: 860−808−5347 Email: mark.kohler@ct.gov ATTORNEY TO BE NOTICED
Michael K. Skold State of Connecticut Office of the Attorney General 165 Capitol Avenue Ste 5000 Hartford, CT 06106 860−808−5020 Fax: 860−808−5347 Email: michael.skold@ct.gov ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Nancy Milagros Trasande New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212) 416−8905 Email: nancy.trasande@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Rachel Wainer Apter New Jersey Office of the Attorney General Department of Law and Public Safety, Div. of Law 25 Market Street PO Box 1122 Trenton, NJ 08625−0112 (609)−376−2702 Fax: (609)−777−4015 Email: rachel.apter@njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Joseph Moramarco New Jersey Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, P.O. Box 093 Trenton, NJ 08625−0093 (609)−376−3235 Email: glenn.moramarco@law.njoag.gov

Plaintiff State of Washington
Plaintiff Commonwealth of Massachusetts

ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Nancy Milagros Trasande (See above for address) ATTORNEY TO BE NOTICED
represented by Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Luke Alexander Eaton Washington State Office of Attorney General Po Box 40109 Olympia, WA 98504 (360)−586−3158 Fax: (360)−586−3564 Email: lukee1@atg.wa.gov ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Nancy Milagros Trasande (See above for address) ATTORNEY TO BE NOTICED
represented by Genevieve Clair Nadeau Massachussets Attorney General's Office One Ashburton Place Boston, MA 02108 (617) 963−2121 Fax: (617) 727−5762 Email: genevieve.nadeau@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Urena Urban Justice Center 123 William Street, 16th Floor New York, NY 10038 646−459−3017 Fax: 212−533−4598 Email: durena@urbanjustice.org ATTORNEY TO BE NOTICED
Jonathan Benjamin Miller Office of Attorney General(MA) One Ashburton Place Boston, MA 02108 617−727−2200 Fax: (617)−727−5762 Email: jonathan.miller@state.ma.us

Plaintiff Commonwealth of Virginia
Plaintiff State of Rhode Island
V. Defendant United States Department of Justice

TERMINATED: 01/07/2020
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Nancy Milagros Trasande (See above for address) ATTORNEY TO BE NOTICED
represented by Victoria Pearson Office of The Attorney General State of Virginia 202 N. 9th Street Richmond, VA 23219 (804)−786−4319 Fax: (804)−823−6905 Email: vpearson@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Nancy Milagros Trasande (See above for address) ATTORNEY TO BE NOTICED
represented by Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Michael W. Field Rhode Island Attorney General 150 South Main Street Providence, RI 02903 (401)−274−4400 Fax: (401)−222−3016 Email: mfield@riag.ri.gov ATTORNEY TO BE NOTICED
Nancy Milagros Trasande (See above for address) ATTORNEY TO BE NOTICED
represented by Charles E.T. Roberts DOJ−Civ 1100 L St. NW

Defendant Jefferson B. Sessions III in his official capacity as Attorney General of the United States TERMINATED: 11/30/2018
Defendant Matthew G. Whitaker in his official capacity as Acting Attorney General of the United States
Intervenor Plaintiff Nexus Services, Inc. and Libre by Nexus, Inc.

Rm. 11308 Washington, DC 20005 202−305−8628 Email: charles.e.roberts@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler U.S. Department of Justice Federal Programs Branch, 950 Pennsylvania Ave, Nw, Room 6141 Washington, DC 20530 (202)−616−0773 Email: dan.mauler@usdoj.gov TERMINATED: 02/28/2020 LEAD ATTORNEY
Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2730 Email: Jeffrey.Oestericher@usdoj.gov TERMINATED: 08/07/2018
represented by Charles E.T. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY
Jeffrey Stuart Oestericher (See above for address) TERMINATED: 08/07/2018
represented by Charles E.T. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY
represented by Michael J. Burke Eckert Seamans Chernin & Mellott 10 Bank Street White Plains, NY 10606 (914)−286−6441 Fax: 914−949−5424 Email: mburke@eckertseamans.com ATTORNEY TO BE NOTICED

Amicus Jerrold Nadler
Amicus Yvette D. Clarke
Amicus Joseph Crowley
Amicus Eliot L. Engel
Amicus Adriano Espaillat
Amicus Brian Higgins
Amicus Hakeem Jeffries
Amicus Nita Lowey
Amicus Congresswoman Carolyn Maloney

represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw, Suite 501 Washington, DC 20036 202−296−6889 x307 Fax: (202)−296−6985 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sean Patrick Maloney
Amicus Gregroy W. Meeks
Amicus Grace Meng
Amicus Kathleen M. Rice
Amicus Jose Serrano
Amicus Paul D. Tonko
Amicus Nydia M. Velazquez
Amicus ACLU Foundation, et al.

represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/18/2018
07/18/2018 07/18/2018

# Docket Text
1 COMPLAINT against Jefferson B. Sessions III, United States Department of Justice. (Filing Fee $ 400.00, Receipt Number 0208−15336036)Document filed by Commonwealth of Virginia, State of Washington, State of New York, State of New Jersey, State Of Connecticut, Commonwealth of Massachusetts. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Rosado, Lourdes) (Entered: 07/18/2018)
2 CIVIL COVER SHEET filed. (Rosado, Lourdes) (Entered: 07/18/2018)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Jefferson B. Sessions III, re: 1 Complaint,. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of

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07/19/2018 07/19/2018 07/19/2018

Washington. (Rosado, Lourdes) (Entered: 07/18/2018)
4 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Justice, re: 1 Complaint,. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Washington. (Rosado, Lourdes) (Entered: 07/18/2018)
5 NOTICE OF APPEARANCE by Nancy Milagros Trasande on behalf of State of New York. (Trasande, Nancy) (Entered: 07/18/2018)
6 NOTICE OF APPEARANCE by Jessica A. Attie on behalf of State of New York. (Attie, Jessica) (Entered: 07/19/2018)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Lourdes Maria Rosado. The party information for the following party/parties has been modified: Jefferson B. Sessions III. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (pc) (Entered: 07/19/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Lourdes Maria Rosado. The following case opening statistical information was erroneously selected/entered: Cause of Action code 05:551. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 28:2201. (pc) (Entered: 07/19/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Edgardo Ramos. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 07/19/2018)
Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 07/19/2018)
Case Designated ECF. (pc) (Entered: 07/19/2018)
7 MOTION for Mark Francis Kohler to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15343250. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State Of Connecticut. (Attachments: # 1 Affidavit In Support of Mot PHV, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order)(Kohler, Mark) (Entered: 07/19/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 7 MOTION for Mark Francis Kohler to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15343250. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 07/19/2018)
8 MOTION for Michael Kenneth Skold to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15343318. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State Of Connecticut. (Attachments: # 1 Affidavit In Support of Motion for PHV, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order)(Skold, Michael) (Entered: 07/19/2018)
9 ELECTRONIC SUMMONS ISSUED as to United States Department of Justice. (pc) (Entered: 07/19/2018)
10 ELECTRONIC SUMMONS ISSUED as to Jefferson B. Sessions III. (pc) (Entered: 07/19/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 8 MOTION for Michael Kenneth Skold to Appear Pro Hac Vice . Filing fee $

07/20/2018 07/20/2018 07/20/2018
07/20/2018
07/23/2018 07/26/2018 07/26/2018 07/27/2018
07/27/2018 07/31/2018 07/31/2018
07/31/2018 07/31/2018
07/31/2018 07/31/2018 07/31/2018

200.00, receipt number 0208−15343318. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 07/19/2018)
11 ORDER granting 7 Motion for Mark Francis Kohler to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 07/20/2018)
12 ORDER granting 8 Motion for Michael Kenneth Skold to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 07/20/2018)
13 FIRST MOTION for Luke Alexander Eaton to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15349257. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Washington. (Attachments: # 1 Affidavit, # 2 Washington State Supreme Court Letter of Good Standing, # 3 Text of Proposed Order)(Eaton, Luke) (Entered: 07/20/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 13 FIRST MOTION for Luke Alexander Eaton to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15349257. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 07/20/2018)
14 ORDER granting 13 Motion for Luke Alexander Eaton to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 07/23/2018)
15 MOTION for Conference . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Washington.(Rosado, Lourdes) (Entered: 07/26/2018)
16 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of Jefferson B. Sessions III, United States Department of Justice. (Oestericher, Jeffrey) (Entered: 07/26/2018)
17 ORDER granting 15 Letter Motion for Conference: A pre−motion conference will be held in this case and the related case, No. 18 Civ. 6474, on August 2, 2018, at 11:30 a.m. Defendants are directed to respond to Plaintiffs' letter by July 31, 2018. (Pre−Motion Conference set for 8/2/2018 at 11:30 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 7/27/2018) (jwh) (Entered: 07/27/2018)
Set/Reset Deadlines: Responses due by 7/31/2018 (jwh) (Entered: 07/27/2018)
18 NOTICE OF APPEARANCE by Genevieve Clair Nadeau on behalf of Commonwealth of Massachusetts. (Nadeau, Genevieve) (Entered: 07/31/2018)
19 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated July 31, 2018 re: Unopposed Request for Telephonic Appearance in August 2, 2018 Pre−Motion Conference. Document filed by State of New York.(Trasande, Nancy) (Entered: 07/31/2018)
20 NOTICE OF APPEARANCE by Lilia Isobel Toson on behalf of State of New York. (Toson, Lilia) (Entered: 07/31/2018)
21 MEMO ENDORSEMENT on re: 19 Letter filed by State of New York. ENDORSEMENT: Counsel for Co−Plaintiff's are directed to jointly call the Court at (212) 805−0169. The application is granted. (Signed by Judge Edgardo Ramos on 7/31/2018) (jwh) (Entered: 07/31/2018)
22 LETTER MOTION for Conference addressed to Judge Edgardo Ramos from Michael J. Burke, Esq. dated July 31, 2018. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc..(Burke, Michael) (Entered: 07/31/2018)
23 NOTICE OF APPEARANCE by Daniel Mauler on behalf of Jefferson B. Sessions III, United States Department of Justice. (Mauler, Daniel) (Entered: 07/31/2018)
24 LETTER addressed to Judge Edgardo Ramos from Daniel Mauler dated July 31, 2018 re: Response to ECF No. 17. Document filed by Jefferson B. Sessions III, United

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States Department of Justice.(Mauler, Daniel) (Entered: 07/31/2018)
25 AFFIDAVIT OF SERVICE of Summons and Complaint, served. All Defendants. Service was accepted by Haajun Lee. Service was made by Mail. Document filed by State of New York. (Attachments: # 1 Summons Returned Executed as to the United States Department of Justice, # 2 Summons Returned Executed as to Jefferson B. Sessions, # 3 U.S. Mail Return Receipts for United States Department of Justice and Jefferson B. Sessions)(Trasande, Nancy) (Entered: 07/31/2018)
26 PROPOSED STIPULATION AND ORDER. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Washington. (Rosado, Lourdes) (Entered: 08/01/2018)
27 NOTICE OF APPEARANCE by Jonathan Benjamin Miller on behalf of Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 08/02/2018)
28 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Mary Donne Peters, Esq. to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15398414. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc.. (Attachments: # 1 Affidavit Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Exhibit A to Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 3 Affidavit Affidavit for Admission, # 4 Text of Proposed Order Order for Admission Pro Hac Vice on Written Motion, # 5 Affidavit Certificate of Service)(Burke, Michael) Modified on 8/2/2018 (wb). (Entered: 08/02/2018)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 28 MOTION for Mary Donne Peters, Esq. to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15398414. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Alabama;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (wb) (Entered: 08/02/2018)
29 STIPULATION: Plaintiffs the States of New York, Connecticut, New Jersey and Washington, and the Commonwealths of Massachusetts and Virginia ("Plaintiff States"), and Defendants United States Department of Justice and Jefferson B. Sessions III ("Defendants"), do HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until September 30, 2018. On September 30, 2018, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2017 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") funds allocated to Plaintiff States, and as further set forth in this stipulation. (Signed by Judge Edgardo Ramos on 8/2/2018) (jwh) (Entered: 08/03/2018)
Minute Entry for proceedings held before Judge Edgardo Ramos: Pre−Motion Conference held on 8/3/2018. Plaintiffs' counsel present. Defendants' counsel present. Amended pleading due August 6, 2018. (jar) Modified on 8/3/2018 (jar). (Entered: 08/03/2018)
30 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated 8/3/2018 re: Response to Proposed Intervenors Request for Pre−Motion Conference (ECF 22). Document filed by State of New York.(Trasande, Nancy) (Entered: 08/03/2018)
31 PROPOSED ORDER FOR SUBSTITUTION OF ATTORNEY. Document filed by Jefferson B. Sessions III, United States Department of Justice. (Oestericher, Jeffrey) (Entered: 08/06/2018)

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32 FIRST AMENDED COMPLAINT amending 1 Complaint, against Jefferson B. Sessions III, United States Department of Justice.Document filed by Commonwealth of Virginia, State of New Jersey, State Of Connecticut, State of New York, State of Washington, Commonwealth of Massachusetts, State of Rhode Island. Related document: 1 Complaint,. (Attachments: # 1 Exhibit A (NY Award Letter), # 2 Exhibit B (CT Award Letter), # 3 Exhibit C (MA Award Letter), # 4 Exhibit D (NJ Award Letter), # 5 Exhibit E (RI Award Letter), # 6 Exhibit F (VA Award Letter), # 7 Exhibit G (WA Award Letter))(Trasande, Nancy) (Entered: 08/06/2018)
33 CONSENT ORDER GRANTING SUBSTITUTION OF ATTORNEY: The substitution of attorney is hereby approved and so ORDERED. (Attorney Jeffrey Stuart Oestericher terminated.) (Signed by Judge Edgardo Ramos on 8/7/2018) (jwh) (Entered: 08/07/2018)
34 NOTICE OF APPEARANCE by Luke Alexander Eaton on behalf of State of Washington. (Eaton, Luke) (Entered: 08/07/2018)
35 LETTER MOTION for Conference LETTER addressed to Judge Edgardo Ramos from Michael Burke dated 8/7/2018 re: Response to 8/3/18 letter of State of New York concerning Proposed Intervenors Request for Pre−Motion Conference (ECF 30). Document filed by Nexus addressed to Judge Edgardo Ramos from Michael J. Burke dated August 7, 2018. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc..(Burke, Michael) (Entered: 08/07/2018)
36 ORDER granting 35 Letter Motion for Conference. A pre−motion conference will be held on August 22, 2018, at 10:00 a.m. Defendants are directed to submit a written response by August 15, 2018. Pre−Motion Conference set for 8/22/2018 at 10:00 AM before Judge Edgardo Ramos. (Signed by Judge Edgardo Ramos on 8/7/2018) (mro) (Entered: 08/08/2018)
37 AMENDED MOTION for Mary Donne Peters, Esq. to Appear Pro Hac Vice Re−filing of Doc #28 Motion. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc.. (Attachments: # 1 Affidavit Aff in Support, # 2 Exhibit Exh A − Certificates, # 3 Exhibit Exh B − Proposed Order, # 4 Affidavit Aff in Support, # 5 Affidavit Certificate of Service)(Burke, Michael) (Entered: 08/08/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 37 AMENDED MOTION for Mary Donne Peters, Esq. to Appear Pro Hac Vice Re−filing of Doc #28 Motion. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 08/08/2018)
38 LETTER MOTION to Adjourn Conference LETTER MOTION to Judge Edgardo Ramos from Michael Burke dated 8/8/2018 re: Response to 8/8/18 memo endorsed letter from Court setting Pre−Motion Conference (ECF 36) addressed to Judge Edgardo Ramos from Michael J. Burke, Esq. dated August 8, 2018. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc..(Burke, Michael) (Entered: 08/08/2018)
39 MOTION for Michael W. Field to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15426837. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Rhode Island. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Proposed Order)(Field, Michael) (Entered: 08/09/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 39 MOTION for Michael W. Field to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15426837. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/09/2018)
40 ORDER granting 38 Letter Motion to Adjourn Conference: The pre−motion conference is rescheduled for August 21, 2018, at 10:00 a.m. (Pre−Motion Conference set for 8/21/2018 at 10:00 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 8/9/2018) (jwh) (Entered: 08/09/2018)
41 PROPOSED STIPULATION AND ORDER. Document filed by State of Rhode Island. (Field, Michael) (Entered: 08/09/2018)

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42 ORDER granting 37 Motion for Mary Donne Peters to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 08/10/2018)
43 ORDER granting 39 Motion for Michael W. Field to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 08/10/2018)
44 LETTER addressed to Judge Edgardo Ramos from Jessica Attie dated 08/10/2018 re: Proposed briefing schedule for motion for summary judgment/motion to dismiss. Document filed by State of New York.(Attie, Jessica) (Entered: 08/10/2018)
48 STIPULATION: Plaintiff, State of Rhode Island ("Rhode Island"), and Defendants United States Department of Justice and Jefferson B. Sessions III ("Defendants"), do HEREBY STIPULATE AND AGREE as follows:This stipulation shall remain in effect until September 30, 2018. On September 30, 2018, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Rhode Island 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term;For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2017 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") funds allocated to Rhode Island, and as further set forth in this stipulation. (Signed by Judge Edgardo Ramos on 8/10/2018) (jwh) (Entered: 08/14/2018)
45 MOTION for Rachel Wainer Apter to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15445733. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of New Jersey. (Attachments: # 1 Affidavit Affidavit in Support of Motion to Appear Pro Hac Vice, # 2 Exhibit NY Certificate of Good Standing, # 3 Exhibit NJ Certificate of Good Standing, # 4 Text of Proposed Order Proposed Order Granting Motion for Pro Hac Vice Admission)(Apter, Rachel) (Entered: 08/14/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 45 MOTION for Rachel Wainer Apter to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15445733. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/14/2018)
46 ORDER granting 45 Motion for Rachel Wainer Apter to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 08/14/2018)
47 MEMO ENDORSEMENT on re: (44 in 1:18−cv−06471−ER) Letter filed by State of New York. ENDORSEMENT: The application is granted. (Motions due by 9/14/2018. Responses due by 9/26/2018. Replies due by 10/8/2018.) (Signed by Judge Edgardo Ramos on 8/14/2018) (jwh) (Entered: 08/14/2018)
49 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION for Anthony F. Troy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15449912. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc.. (Attachments: # 1 Affidavit Aff in Support of Motion, # 2 Affidavit Aff for Admission Pro Hac Vice, # 3 Exhibit Exhibit A to Troy Affidavit, # 4 Exhibit Proposed Order Pro Hac Vice, # 5 Certificate of Service)(Burke, Michael) Modified on 8/15/2018 (wb). (Entered: 08/14/2018)
50 TRANSCRIPT of Proceedings re: conference held on 8/2/2018 before Judge Edgardo Ramos. Court Reporter/Transcriber: Jennifer Thun, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/4/2018. Redacted Transcript Deadline set for 9/14/2018. Release of Transcript Restriction set for 11/13/2018.(McGuirk, Kelly) (Entered: 08/14/2018)

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51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 8/2/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/14/2018)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 49 FIRST MOTION for Anthony F. Troy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15449912. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Virginia;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (wb) (Entered: 08/15/2018)
52 LETTER RESPONSE to Motion addressed to Judge Edgardo Ramos from Daniel Mauler dated August 15, 2018 re: 35 LETTER MOTION for Conference LETTER addressed to Judge Edgardo Ramos from Michael Burke dated 8/7/2018 re: Response to 8/3/18 letter of State of New York concerning Proposed Intervenors Request for Pre−Motion Conference (ECF 30). Document filed b . Document filed by Jefferson B. Sessions III, United States Department of Justice. (Mauler, Daniel) (Entered: 08/15/2018)
53 AMENDED MOTION for Anthony Francis Troy to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc.. (Attachments: # 1 Affidavit in Support, # 2 Affidavit for Admission, # 3 Exhibit A Certificates of Good Standing, # 4 Exhibit B Proposed Order, # 5 Certificate of Service)(Burke, Michael) (Entered: 08/15/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 53 AMENDED MOTION for Anthony Francis Troy to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/15/2018)
54 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated 8/15/2018 re: Request for Telephonic Appearance in August 21, 2018 Pre−Motion Conference regarding Proposed Motion for Intervention (ECF No. 40). Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Trasande, Nancy) (Entered: 08/15/2018)
55 LETTER MOTION for Conference REQUEST FOR TELEPHONIC APPEARANCE IN AUGUST 21, 2018 PRE−MOTION CONFERENCE REGARDING PROPOSED MOTION FOR INTERVENTION (ECF NO. 40) addressed to Judge Edgardo Ramos from Michael J. Burke dated August 17, 2018. Document filed by Nexus Services, Inc. and Libre by Nexus, Inc..(Burke, Michael) (Entered: 08/17/2018)
56 MOTION for Partial Summary Judgment . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Trasande, Nancy) (Entered: 08/17/2018)
57 MEMORANDUM OF LAW in Support re: 56 MOTION for Partial Summary Judgment . . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Supplement 56.1 Statement, # 2 Text of Proposed Order Proposed Order)(Attie, Jessica) (Entered: 08/17/2018)
58 DECLARATION of Nancy Trasande in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9

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Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Errata 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21 (Part 1), # 22 Exhibit 21 (Part 2), # 23 Exhibit 21 (Part 3), # 24 Exhibit 21 (Part 4), # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26 (Part 1), # 30 Exhibit 26 (Part 2), # 31 Exhibit 26 (Part 3), # 32 Exhibit 27, # 33 Exhibit 28, # 34 Exhibit 29, # 35 Exhibit 30, # 36 Exhibit 31, # 37 Exhibit 32, # 38 Exhibit 32.1, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Errata 37, # 44 Exhibit 37.1, # 45 Exhibit 38, # 46 Exhibit 39, # 47 Exhibit 40, # 48 Exhibit 41, # 49 Exhibit 42, # 50 Exhibit 43, # 51 Exhibit 44)(Trasande, Nancy) (Entered: 08/17/2018)
59 DECLARATION of Michael C. Green in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Attie, Jessica) (Entered: 08/17/2018)
60 DECLARATION of William G. Kelly Jr. in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5(A−C), # 6 Exhibit 5(D), # 7 Exhibit E)(Attie, Jessica) (Entered: 08/17/2018)
61 DECLARATION of Lovely A. Warren in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1)(Trasande, Nancy) (Entered: 08/17/2018)
62 DECLARATION of Michael P. Lawlor in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attie, Jessica) (Entered: 08/17/2018)
63 DECLARATION of Jennifer F. Fradel in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1)(Trasande, Nancy) (Entered: 08/17/2018)
64 DECLARATION of Chia−Chia Wang in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attie, Jessica) (Entered: 08/17/2018)
65 DECLARATION of Michael J. Hogan in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 08/17/2018)
66 DECLARATION of Diane Klontz in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Attie, Jessica) (Entered: 08/17/2018)
67 DECLARATION of Adrian Diaz in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Trasande, Nancy) (Entered: 08/17/2018)

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68 DECLARATION of Daniel J. Bennett in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attie, Jessica) (Entered: 08/17/2018)
69 DECLARATION of Shannon Dion in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attie, Jessica) (Entered: 08/17/2018)
70 DECLARATION of Marcos Soler in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Attie, Jessica) (Entered: 08/17/2018)
71 DECLARATION of Laura Negron in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Attie, Jessica) (Entered: 08/17/2018)
72 DECLARATION of Richard Torrance in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Trasande, Nancy) (Entered: 08/17/2018)
73 DECLARATION of Candice Cho in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Attie, Jessica) (Entered: 08/17/2018)
74 DECLARATION of Kim Y. Royster in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 08/17/2018)
75 DECLARATION of Mary Travis Bassett in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Attie, Jessica) (Entered: 08/17/2018)
76 ORDER granting in part and denying in part 55 Letter Motion for Conference: The parties' applications to appear telephonically are GRANTED. Plaintiffs' and Nexus' applications for the Court to provide call−in instructions are DENIED. The Court does not have telephone conferencing capabilities, and, therefore, directs the parties to jointly call the Court at (212) 805−0169, or provide the Court with call−in instructions. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 55. (Signed by Judge Edgardo Ramos on 8/20/2018) (jwh) (Entered: 08/20/2018)
Minute Entry for proceedings held before Judge Edgardo Ramos: Pre−Motion Conference held on 8/21/2018. Counsel for Plaintiff State of New York, present. Counsel for Co−Plaintiffs appeared by telephone. Defendants' counsel appeared by telephone. Counsel for proposed Intervenor Plainitffs present. For the reasons stated on the record, proposed Intervenors' Motion to Intervene is DENIED. (jar) (Entered: 08/21/2018)
77 ORDER denying 22 Letter Motion for Conference. Accordingly, Nexus's motion to intervene is DENIED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 22. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 8/21/2018) (ne) (Entered: 08/21/2018)

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78 MOTION for Leave to File Amici Curiae Brief of Members of Congress. Document filed by Jerrold Nadler, Yvette D. Clarke, Joseph Crowley, Eliot L. Engel, Adriano Espaillat, Brian Higgins, Hakeem Jeffries, Nita Lowey, Carolyn Maloney, Sean Patrick Maloney, Gregroy W. Meeks, Grace Meng, Kathleen M. Rice, Jose Serrano, Paul D. Tonko, Nydia M. Velazquez. (Attachments: # 1 Motion for Leave To File, # 2 Exhibit Proposed Amici Curiae Brief, # 3 Text of Proposed Order)(Gans, David) (Entered: 08/24/2018)
79 MEMO ENDORSEMENT on re: (78 in 1:18−cv−06471−ER) MOTION for Leave to File Amici Curiae Brief; (45 in 1:18−cv−06474−ER) MOTION for Leave to File Amici Curiae Brief. ENDORSEMENT: Defendants are directed to respond by August 30, 2018. (Set Deadlines/Hearing as to (78 in 1:18−cv−06471−ER) MOTION for Leave to File Amici Curiae Brief; (45 in 1:18−cv−06474−ER) MOTION for Leave to File Amici Curiae Brief: Responses due by 8/30/2018) (Signed by Judge Edgardo Ramos on 8/27/2018) (jwh) (Entered: 08/27/2018)
80 LETTER addressed to Judge Edgardo Ramos from Daniel Mauler dated August 28, 2018 re: Response to ECF No. 79. Document filed by Jefferson B. Sessions III, United States Department of Justice.(Mauler, Daniel) (Entered: 08/28/2018)
81 LETTER addressed to Judge Edgardo Ramos from Jessica Attie dated 08/28/2018 re: Filing of Amicus Briefs. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Attie, Jessica) (Entered: 08/28/2018)
82 ORDER granting 78 Letter Motion for Leave to File Document. Upon consideration of the motion of members of Congress for leave to file their proposed amici curiae brief in support of plaintiffs, it is hereby ORDERED that the motion is GRANTED. (Signed by Judge Edgardo Ramos on 8/28/2018) (mro) (Entered: 08/29/2018)
83 MEMO ENDORSEMENT on re: (81 in 1:18−cv−06471−ER) Letter, filed by State of New Jersey, Commonwealth of Massachusetts, Commonwealth of Virginia, State of Rhode Island, State of New York, State Of Connecticut, State of Washington. ENDORSEMENT: The application is granted. ( Brief due by 9/24/2018.) (Signed by Judge Edgardo Ramos on 8/28/2018) (mro) (Entered: 08/29/2018)
84 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Victoria N. Pearson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15518936. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Commonwealth of Virginia. (Attachments: # 1 Text of Proposed Order)(Pearson, Victoria) Modified on 8/31/2018 (jc). (Entered: 08/31/2018)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 84 MOTION for Victoria N. Pearson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15518936. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificates of Good Standing from Supreme Courts of North Carolina and Virginia (our court does not accept state bar certificates from either state). Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Attorney Affidavit − attach Proposed Order. (jc) (Entered: 08/31/2018)
85 BRIEF of Amici Curiae. Document filed by ACLU Foundation, et al..(Jadwat, Omar) (Entered: 08/31/2018)
86 TRANSCRIPT of Proceedings re: conference held on 8/21/2018 before Judge Edgardo Ramos. Court Reporter/Transcriber: Anita Trombetta, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/26/2018. Redacted Transcript Deadline set for 10/9/2018. Release of Transcript Restriction set for 12/4/2018.(McGuirk, Kelly) (Entered: 09/05/2018)

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87 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 8/21/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/05/2018)
88 MOTION to Dismiss or alternatively, motion for partial summary judgment. Document filed by Jefferson B. Sessions III, United States Department of Justice.(Mauler, Daniel) (Entered: 09/14/2018)
89 MEMORANDUM OF LAW in Support re: 88 MOTION to Dismiss or alternatively, motion for partial summary judgment. Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 56). Document filed by Jefferson B. Sessions III, United States Department of Justice. (Attachments: # 1 Supplement Response to Plaintiffs' LR 56.1 Statement, # 2 Supplement Defendants' LR 56.1 Statement of Undisputed Material Facts, # 3 Text of Proposed Order)(Mauler, Daniel) (Entered: 09/14/2018)
90 DECLARATION of Francisco Madrigal in Support re: 88 MOTION to Dismiss or alternatively, motion for partial summary judgment.. Document filed by Jefferson B. Sessions III, United States Department of Justice. (Mauler, Daniel) (Entered: 09/14/2018)
91 DECLARATION of Tracey Trautman in Support re: 88 MOTION to Dismiss or alternatively, motion for partial summary judgment.. Document filed by Jefferson B. Sessions III, United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mauler, Daniel) (Entered: 09/14/2018)
92 MOTION for Victoria Nathalie Pearson to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Commonwealth of Virginia. (Attachments: # 1 Text of Proposed Order)(Pearson, Victoria) (Entered: 09/17/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 92 MOTION for Victoria Nathalie Pearson to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 09/17/2018)
93 REPLY MEMORANDUM OF LAW in Support re: 56 MOTION for Partial Summary Judgment . . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Plaintiffs Responses To Defendants Local Rule 56.1 Statement Of Undisputed Material Facts, # 2 Supplemental Declaration Of Nancy M. Trasande In Further Support Of Plaintiffs Motion For Partial Summary Judgment, # 3 Exhibit 45, # 4 Exhibit 46, # 5 Exhibit 47, # 6 Exhibit 48, # 7 Exhibit 49, # 8 Exhibit 50, # 9 Exhibit 51, # 10 Exhibit 52)(Trasande, Nancy) (Entered: 09/26/2018)
94 ORDER granting 53 Motion for Anthony Francis Troy to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 10/02/2018)
95 ORDER granting 92 Motion for Victoria Nathalie Pearson to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 10/02/2018)
96 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge Edgardo Ramos from Daniel Mauler dated October 3, 2018. Document filed by Jefferson B. Sessions III, United States Department of Justice.(Mauler, Daniel) (Entered: 10/03/2018)
97 MOTION for Glenn J Moramarco to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15656790. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of New Jersey. (Attachments: # 1 cert of good standing, # 2 Affidavit, # 3 Text of Proposed Order)(Moramarco, Glenn) (Entered: 10/04/2018)

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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 97 MOTION for Glenn J Moramarco to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15656790. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 10/04/2018)
98 ORDER granting 96 Letter Motion for Leave to File Excess Pages. The application is granted. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo) (Entered: 10/04/2018)
99 REPLY to Response to Motion re: 88 MOTION to Dismiss or alternatively, motion for partial summary judgment. . Document filed by Jefferson B. Sessions III, United States Department of Justice. (Mauler, Daniel) (Entered: 10/08/2018)
100 NOTICE of Supplemental Authority re: 57 Memorandum of Law in Support of Motion,. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Attie, Jessica) (Entered: 10/10/2018)
101 NOTICE OF APPEARANCE by Conor P Duffy on behalf of State of New York. (Duffy, Conor) (Entered: 10/11/2018)
102 ORDER: The Clerk of the Court is unable to copy all of these documents as requested. However, the Court will re−file its own entries and documents so that they appear on the docket of both actions. As to the remaining documents, the parties and amici in No. 18 Civ. 6471 are directed to re−file their respective documents in No. 18 Civ. 6474. (Signed by Judge Edgardo Ramos on 10/15/2018) (jwh) (Entered: 10/15/2018)
103 PROPOSED STIPULATION AND ORDER. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attie, Jessica) (Entered: 10/19/2018)
104 ORDER granting 97 Motion for Glenn J Moramarco to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (jar) (Entered: 10/22/2018)
105 STIPULATION: Plaintiffs the States of New York, Connecticut, New Jersey, Rhode Island, and Washington, and the Commonwealths of Massachusetts and Virginia ("Plaintiff States"), and Defendants United States Department of Justice and Jefferson B. Sessions III ("Defendants"), do HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until December 19, 2018. On December 19, 2018, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2018 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") funds allocated to Plaintiff States; 3. For the duration of this stipulation, Defendants shall not deny Plaintiff States their respective FY 2018 Byrne JAG awards (in keeping with their respective FY 2018 Byrne JAG formula allocations) on the basis of failure to accept the FY 2018 Byrne JAG award within 45 days of receiving the award documents, and as further set forth in this stipulation. (Signed by Judge Edgardo Ramos on 10/22/2018) (jwh) (Entered: 10/22/2018)
106 LETTER addressed to Judge Edgardo Ramos from Lourdes Rosado dated 10/24/2018 re: Oral argument. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Attie, Jessica) (Entered: 10/24/2018)
107 LETTER addressed to Judge Edgardo Ramos from Daniel Mauler dated October 31, 2018 re: Update on Available Dates for Oral Argument. Document filed by Jefferson B. Sessions III, United States Department of Justice.(Mauler, Daniel) (Entered: 10/31/2018)

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108 MEMO ENDORSEMENT on re: (107 in 1:18−cv−06471−ER) Letter filed by Jefferson B. Sessions III, United States Department of Justice, (74 in 1:18−cv−06474−ER) Letter filed by United States Department of Justice, Jefferson B. Sessions, III. ENDORSEMENT: Oral Argument will be held on November 16, 2018, at 2:30 p.m. SO ORDERED. (Oral Argument set for 11/16/2018 at 02:30 PM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 11/1/2018) (jca) (Entered: 11/01/2018)
109 PROPOSED STIPULATION AND ORDER. Document filed by Commonwealth of Virginia, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 11/02/2018)
110 STIPULATION: Plaintiffs the States of New York, New Jersey, Rhode Island, and Washington, and the Commonwealth of Virginia ("Plaintiff States"), and Defendants United States Department of Justice and Jefferson B. Sessions III ("Defendants"), do HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until January 1, 2019. On January 1, 2019, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2018 Title II Juvenile Justice Delinquency Prevention ("Title II") funds allocated to Plaintiff States, and as further set forth in this stipulation. (Signed by Judge Edgardo Ramos on 11/2/2018) (jwh) (Entered: 11/05/2018)
111 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated 11/13/2018 re: Request for Telephonic Appearance in Connection with November 16, 2018 Oral Argument Regarding the Parties Motions for Partial Summary Judgment. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Trasande, Nancy) (Entered: 11/13/2018)
112 NOTICE of Withdrawal of Attorney Jessica Attie. Document filed by State of New York. (Trasande, Nancy) (Entered: 11/13/2018)
113 MEMO ENDORSEMENT on re: (111 in 1:18−cv−06471−ER) Letter. ENDORSEMENT: The application is granted. (Signed by Judge Edgardo Ramos on 11/14/2018) (jwh) (Entered: 11/15/2018)
114 OPINION AND ORDER re: 88 MOTION to Dismiss or alternatively, motion for partial summary judgment; 56 MOTION for Partial Summary Judgment: Plaintiffs' motion for partial summary judgment is GRANTED, and Defendants' motion for partial summary judgment or in the alternative to dismiss is DENIED. Specifically, the Court hereby ORDERS as follows: 1. The Notice, Access, and Compliance Conditions are ultra vires and not in accordance with law under the APA. Summary judgment is GRANTED to the States on their Counts II and III and to the City on its Count II. 2. 8 U.S.C. § 1373(a)(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Summary judgment is GRANTED to the States on their Count V and to the City on its Counts V and XI. 3. The Notice, Access, and Compliance Conditions violate the constitutional separation of powers. Summary judgment is GRANTED to the States on their Count I and to the City on its Count I. The motions for summary judgment with respect to the City's Count IV (violation of the Spending Clause) are DENIED as moot. 4. The Notice, Access, and Compliance Conditions are arbitrary and capricious under the APA. Summary judgment is GRANTED to the States on their Count IV and to the City on its Count III. 5. Defendants are MANDATED to reissue the States' FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance, to disburse those awards as they would in the ordinary course without regard to those conditions. 6. Defendants are ENJOINED from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 56 and 88 in No. 18 Civ. 6471, and Docs. 21 and 50 in No. 18 Civ. 6474, and to update the docket as noted in the caption. (Matthew G. Whitaker added. Jefferson B.

12/03/2018 12/03/2018 12/19/2018 12/20/2018 12/28/2018 12/28/2018 01/02/2019 01/04/2019
01/18/2019

Sessions III (in his official capacity as Attorney General of the United States) terminated.) (Signed by Judge Edgardo Ramos on 11/30/2018) (jwh) Modified on 11/30/2018 (jwh). (Entered: 11/30/2018)
115 TRANSCRIPT of Proceedings re: motion held on 11/16/2018 before Judge Edgardo Ramos. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/24/2018. Redacted Transcript Deadline set for 1/3/2019. Release of Transcript Restriction set for 3/3/2019.(McGuirk, Kelly) (Entered: 12/03/2018)
116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a motion proceeding held on 11/16/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/03/2018)
117 LETTER MOTION for Conference regarding motion for modification of November 30, 2018 Order addressed to Judge Edgardo Ramos from Daniel Mauler dated December 19, 2018. Document filed by United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 12/19/2018)
118 ORDER entered 117 Motion for Conference. Plaintiffs are directed to respond by Friday, December 28, 2018. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (jar) (Entered: 12/20/2018)
119 LETTER RESPONSE to Motion addressed to Judge Edgardo Ramos from Lourdes M. Rosado dated 12/28/2018 re: 117 LETTER MOTION for Conference regarding motion for modification of November 30, 2018 Order addressed to Judge Edgardo Ramos from Daniel Mauler dated December 19, 2018. . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Rosado, Lourdes) (Entered: 12/28/2018)
120 MEMO ENDORSEMENT on re: (119 in 1:18−cv−06471−ER) Response to Motion, filed by State of New Jersey, Commonwealth of Massachusetts, Commonwealth of Virginia, State of Rhode Island, State of New York, State Of Connecticut, State of Washington. ENDORSEMENT: Defendants are directed to respond by Wednesday, January 2, 2019. SO ORDERED. (Responses due by 1/2/2019) (Signed by Judge Edgardo Ramos on 12/28/2018) (jca) (Entered: 12/28/2018)
121 LETTER addressed to Judge Edgardo Ramos from Daniel Mauler dated January 2, 2019 re: Government's Response to ECF No. 120. Document filed by United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 01/02/2019)
122 ORDER terminating 117 Letter Motion for Conference. Accordingly, Paragraph 5 of the "Conclusion" section of the Court's Opinion and Order is hereby modified to read as follows: "Defendants are MANDATED to issue the States' FY 2017 Byrne JAG award documents, and upon acceptance by those jurisdictions, to disburse those awards as they would in the ordinary course but without regard to the Notice, Access, or Compliance Conditions. Acceptance of the FY 2017 awards shall not be construed as acceptance of the enjoined conditions." Upon restoration of appropriations to the Department of Justice and Plaintiffs' acceptance of the award documents, Defendants are directed to inform Plaintiffs of the expected timing of the disbursement of their FY 2017 Byrne JAG funds. The Court expects that, upon the occurrence of these events, Defendants will disburse the funds without further delay. The Clerk of Court is respectfully directed to terminate the motions, Doc. 117 in No. 18civ.6471, and Doc. 82 in No. 18Civ6474. SO ORDERED. (Signed by Judge Edgardo Ramos on 1/4/2019) (kv) (Entered: 01/04/2019)
123 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Conference addressed to Judge Edgardo Ramos from Lilia I. Toson dated January 18, 2019. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New

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01/28/2019 01/29/2019

York, State of Rhode Island, State of Washington.(Toson, Lilia) Modified on 2/6/2019 (ldi). (Entered: 01/18/2019)
124 LETTER addressed to Judge Edgardo Ramos from Daniel Mauler dated January 24, 2019 re: Response to Plaintiffs' Letter (ECF No. 123). Document filed by United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Exhibit A)(Mauler, Daniel) (Entered: 01/24/2019)
125 FILING ERROR − NO ORDER SELECTED FOR APPEAL − NOTICE OF INTERLOCUTORY APPEAL. Document filed by United States Department of Justice, Matthew G. Whitaker. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mauler, Daniel) Modified on 1/28/2019 (tp). (Entered: 01/28/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel to RE−FILE Document No. 125 Notice of Interlocutory Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Re−file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents − attach the correct signed PDF − select the correct named filer/filers − select the correct order/judgment being appealed. (tp) (Entered: 01/28/2019)
126 NOTICE OF INTERLOCUTORY APPEAL from 122 Order on Motion for Conference,,,, 114 Memorandum & Opinion,,,,,,,,,, Add and Terminate Parties,,,,,,,,,. Document filed by United States Department of Justice, Matthew G. Whitaker. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mauler, Daniel) (Entered: 01/28/2019)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 126 Notice of Interlocutory Appeal. (tp) (Entered: 01/28/2019)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 126 Notice of Interlocutory Appeal, filed by Matthew G. Whitaker, United States Department of Justice were transmitted to the U.S. Court of Appeals. (tp) (Entered: 01/28/2019)
127 MEMO ENDORSEMENT on 124 LETTER terminating 123 Letter Motion for Conference. ENDORSEMENT: Defendants' motion for a stay is denied as moot. See Further Additional Continuing Appropriations Act, 2019, H.J. Res. 28, 116th Cong. (enacted Jan. 25, 2019). Defendants are directed to confirm that the administrative record filed in other cases regarding the FY 2018 Byrne JAG funds is the appropriate administrative record for purposes of this case or file the appropriate administrative record for this case. The parties are granted leave to file motions regarding the FY 2018 conditions with the following briefing schedule: Plaintiffs (the States and New York City) will file a joint motion and brief for summary judgment (including, if necessary, a supplemental brief addressing issues specific to the City of New York) by February 15, 2019 (the joint brief and any supplemental brief shall not exceed 60 pages in total); Defendants will file a combination motion to dismiss and opposition, or, alternatively, a motion for summary judgment and opposition to Plaintiffs' motion by March 29, 2019; Plaintiffs will file their opposition to the motion to dismiss / motion for summary judgment and reply in support of their motion by April 19, 2019; and Defendants will file their reply by May 3, 2019. The page limit for opening briefs and opposition briefs is extended to 60 pages. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 123 in No. 18 Civ. 6471. SO ORDERED. (Signed by Judge Edgardo Ramos on 1/28/2019) (anc) Modified on 1/28/2019 (anc). (Entered: 01/28/2019)
Set/Reset Deadlines: Motions due by 4/19/2019. Responses due by 4/19/2019. Replies due by 5/3/2019. (anc) (Entered: 01/28/2019)
128 LETTER MOTION for Extension of Time to File Motion for Partial Summary Judgment addressed to Judge Edgardo Ramos from Lilia I. Toson dated January 29, 2019. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Toson, Lilia) (Entered: 01/29/2019)

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129 MEMO ENDORSEMENT on re: (98 in 1:18−cv−06474−ER) Letter, filed by The City of New York. ENDORSEMENT: The application is granted. SO ORDERED. (Motions due by 3/1/2019., Responses due by 4/12/2019, Replies due by 5/3/2019., Surreplies due by 5/17/2019.) (Signed by Judge Edgardo Ramos on 1/29/2019) (kv) (Entered: 01/30/2019)
130 NOTICE of Motion for Withdrawal of Appearance. Document filed by State of New York. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Rosado, Lourdes) (Entered: 02/11/2019)
131 NOTICE OF APPEARANCE by Matthew Colangelo on behalf of State of New York. (Colangelo, Matthew) (Entered: 02/11/2019)
132 MOTION for Partial Summary Judgment . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Trasande, Nancy) (Entered: 03/01/2019)
133 DECLARATION of Nancy M. Trasande in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 53, # 2 Exhibit 54, # 3 Exhibit 55, # 4 Exhibit 56, # 5 Exhibit 57, # 6 Exhibit 58, # 7 Exhibit 59, # 8 Exhibit 60, # 9 Exhibit 61, # 10 Exhibit 62, # 11 Exhibit 63, # 12 Exhibit 64, # 13 Exhibit 65, # 14 Exhibit 66, # 15 Exhibit 67, # 16 Exhibit 68, # 17 Exhibit 69, # 18 Exhibit 70, # 19 Exhibit 71, # 20 Exhibit 72, # 21 Exhibit 73, # 22 Exhibit 74, # 23 Exhibit 75, # 24 Exhibit 76, # 25 Exhibit 77, # 26 Exhibit 78, # 27 Exhibit 79, # 28 Exhibit 80, # 29 Exhibit 81, # 30 Exhibit 82, # 31 Exhibit 83, # 32 Exhibit 84)(Trasande, Nancy) (Entered: 03/01/2019)
134 DECLARATION of Marc Pelka in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1)(Trasande, Nancy) (Entered: 03/01/2019)
135 DECLARATION of Thomas Turco III in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Trasande, Nancy) (Entered: 03/01/2019)
136 DECLARATION of Jennifer E. Fradel in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Trasande, Nancy) (Entered: 03/01/2019)
137 DECLARATION of Michael Charles Green in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Trasande, Nancy) (Entered: 03/01/2019)
138 DECLARATION of Marcos Soler in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 03/01/2019)
139 DECLARATION of Michael Hogan in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Trasande, Nancy) (Entered: 03/01/2019)
140 DECLARATION of Shannon Dion in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of

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Rhode Island, State of Washington. (Attachments: # 1 Exhibit 1)(Trasande, Nancy) (Entered: 03/01/2019)
141 DECLARATION of Darren Ullman in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 03/01/2019)
142 DECLARATION of Diane Klontz in Support re: 132 MOTION for Partial Summary Judgment .. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Exhibit A)(Trasande, Nancy) (Entered: 03/01/2019)
143 MEMORANDUM OF LAW in Support re: 132 MOTION for Partial Summary Judgment . . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 56.1 Statement)(Trasande, Nancy) (Entered: 03/01/2019)
144 PROPOSED ORDER. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. Related Document Number: 132 . (Trasande, Nancy) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 03/01/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 144 Proposed Order was reviewed and approved as to form. (km) (Entered: 03/04/2019)
145 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Genevieve C. Nadeau to Withdraw as Attorney . Document filed by Commonwealth of Massachusetts. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Nadeau, Genevieve) Modified on 4/3/2019 (db). (Entered: 03/05/2019)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Genevieve Clair Nadeau to RE−FILE Document 145 MOTION for Genevieve C. Nadeau to Withdraw as Attorney . ERROR(S): Supporting Documents are filed separately, each receiving their own document #'s. (db) (Entered: 04/03/2019)
146 MOTION to Dismiss or alternatively, motion for partial summary judgment. Document filed by United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 04/12/2019)
147 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 146 MOTION to Dismiss or alternatively, motion for partial summary judgment. Opposition to Plantiffs' Motion for Partial Summary Judgment (ECF No. 132). Document filed by United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Supplement Response to Plaintiffs' LR 56.1 Statement, # 2 Supplement Defendants' LR 56.1 Statement, # 3 Text of Proposed Order)(Mauler, Daniel) Modified on 4/22/2019 (ldi). (Entered: 04/12/2019)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Daniel Mauler to RE−FILE Document 147 Memorandum of Law in Support of Motion. ERROR(S): Supporting/Opposing documents must be filed separately, each receiving their own document number. Rule 56.1 Statement and Counter Statement to Rule 56.1 are both found under the event list Other Answers. (ldi) (Entered: 04/22/2019)
148 MOTION for Genevieve Nadeau to Withdraw as Attorney . Document filed by Commonwealth of Massachusetts.(Nadeau, Genevieve) (Entered: 04/22/2019)
149 DECLARATION of Genevieve Nadeau in Support re: 148 MOTION for Genevieve Nadeau to Withdraw as Attorney .. Document filed by Commonwealth of Massachusetts. (Nadeau, Genevieve) (Entered: 04/22/2019)

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150 PROPOSED ORDER. Document filed by Commonwealth of Massachusetts. Related Document Number: 148 . (Nadeau, Genevieve) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 04/22/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 150 Proposed Order was reviewed and approved as to form. (km) (Entered: 04/22/2019)
151 MEMORANDUM OF LAW in Support re: 146 MOTION to Dismiss or alternatively, motion for partial summary judgment. Opposition to Plantiffs' Motion for Partial Summary Judgment (ECF No. 132).. Document filed by United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Text of Proposed Order)(Mauler, Daniel) (Entered: 04/23/2019)
152 RULE 56.1 STATEMENT. Document filed by United States Department of Justice, Matthew G. Whitaker. (Mauler, Daniel) (Entered: 04/23/2019)
153 COUNTER STATEMENT TO Document filed by United States Department of Justice, Matthew G. Whitaker. (Mauler, Daniel) (Entered: 04/23/2019)
154 MEMORANDUM OF LAW in Opposition re: 146 MOTION to Dismiss or alternatively, motion for partial summary judgment., 132 MOTION for Partial Summary Judgment . . Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Attachments: # 1 Pls. Resps. to Defs. 56.1 Statement, # 2 Trasande/Holt Decl., # 3 Exhibit 85, # 4 Exhibit 86)(Trasande, Nancy) (Entered: 05/03/2019)
155 LETTER MOTION for Leave to File Excess Pages addressed to Judge Edgardo Ramos from Daniel D. Mauler dated May 16, 2019. Document filed by Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 05/16/2019)
156 ORDER granting 155 Letter Motion for Leave to File Excess Pages. The application is granted. SO ORDERED. (Signed by Judge Edgardo Ramos on 5/17/2019) (kv) (Entered: 05/17/2019)
157 REPLY to Response to Motion re: 146 MOTION to Dismiss or alternatively, motion for partial summary judgment. . Document filed by Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker. (Mauler, Daniel) (Entered: 05/17/2019)
158 PROPOSED STIPULATION AND ORDER. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 09/18/2019)
159 STIPULATION: HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until November 17, 2019. On November 17, 2019, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2019 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") funds allocated to Plaintiff States; as further set forth herein. The application is granted. SO ORDERED. (Signed by Judge Edgardo Ramos on 9/19/2019) (kv) (Entered: 09/19/2019)
160 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated 9/25/2019 re: Request to Withdraw Jessica Attie, Lourdes Rosado, and Lilia Toson as Counsel for the State of New York. Document filed by Commonwealth of Massachusetts, Commonwealth of Virginia, State Of Connecticut, State of New Jersey, State of New York, State of Rhode Island, State of Washington.(Trasande, Nancy) (Entered: 09/25/2019)

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161 MEMO ENDORSEMENT on re: 160 LETTER addressed to Judge Edgardo Ramos from Nancy Trasande dated 9/25/2019 re: Request to Withdraw Jessica Attie, Lourdes Rosado, and Lilia Toson as Counsel for the State of New York. Document filed by Commonwealth of Massachusetts, et al. ENDORSEMENT: The application is granted. Attorney Lilia Isobel Toson, Jessica A. Attie and Lourdes Maria Rosado terminated. (Signed by Judge Edgardo Ramos on 9/26/2019) (rjm) (Entered: 09/27/2019)
162 PROPOSED STIPULATION AND ORDER. Document filed by Commonwealth of Virginia, State of New Jersey, State of New York, State of Rhode Island, State of Washington. (Trasande, Nancy) (Entered: 11/01/2019)
163 STIPULATION: Plaintiffs the States of New York, New Jersey, Rhode Island, and Washington, and the Commonwealth of Virginia ("Plaintiff States"), and Defendants United States Department of Justice and William P. Barr ("Defendants"), do HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until December 31, 2019. On December 31, 2019, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2019 Title II Juvenile Justice Delinquency Prevention ("Title II") funds allocated to Plaintiff States; 3. For the duration of this stipulation, Defendants shall not deny Plaintiff States their respective FY 2019 Title II awards (in keeping with their respective FY 2019 Title II formula allocations) on the basis of failure to accept the FY 2019 Title II award within 45 days of receiving the award documents; 4. If this stipulation is in effect at the time a resolution of this matter on the merits is reached, Defendants shall not deny Plaintiff States their respective FY 2019 Title II awards for failure to accept the award within the deadline to accept without first advising them in writing of a new period (of not less than 45 days) within which to accept and allowing that period to expire. If after a determination on the merits, Plaintiff States remain eligible for a FY 2019 Title II award and the Court's order does not require alteration of the award documents, Defendants will issue a new deadline within 7 days; 5. This stipulation is independent of, and does not alter, amend, or replace, the Stipulations and Orders previously entered and agreed between the Defendants and the Plaintiff States (ECF Nos. 29, 105, 110, 159); and 6. This stipulation applies only to the parties that are currently before the Court in this litigation. No party that is not currently named as a party to this litigation shall be entitled to any rights or benefits whatsoever under this stipulation. The application is granted. (Signed by Judge Edgardo Ramos on 11/4/2019) (mro) Modified on 11/4/2019 (mro). (Entered: 11/04/2019)
164 PROPOSED STIPULATION AND ORDER. Document filed by State Of Connecticut, State of New Jersey, State of New York. (Trasande, Nancy) (Entered: 12/17/2019)
165 STIPULATION: HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., until February 15, 2020. On February 15, 2020, and every 30 days thereafter, this stipulation shall automatically be extended for a 30−day period (the "extension term"), except in the case that Defendants give notice to Plaintiff States 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next extension term, thus ending the stipulation at the end of the then−operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury the Fiscal Year ("FY") 2019 COPS Office Anti−Heroin Task Force Program("AHTF") funds allocated to Plaintiff States; as further set forth herein. This stipulation is independent of, and does not alter, amend, or replace, the Stipulations and Orders previously entered and agreed between the Defendants and the Plaintiff States (ECF Nos. 29, 105, 110, 159, 163); and This stipulation applies only to the parties that are currently before the Court in this litigation. No party that is not currently named as a party to this litigation shall be entitled to any rights or benefits whatsoever under this stipulation. IT IS STIPULATED AND AGREED. SO ORDERED. (Signed by Judge Edgardo Ramos on 12/18/2019) (kv) (Entered: 12/19/2019)

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166 NOTICE OF APPEARANCE by David Urena on behalf of Commonwealth of Massachusetts. (Urena, David) (Entered: 01/02/2020)
167 MOTION for Jonathan Miller to Withdraw as Attorney . Document filed by Commonwealth of Massachusetts. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Miller, Jonathan) (Entered: 01/02/2020)
168 ORDER granting 167 Motion to Withdraw as Attorney. IT IS HEREBY ORDERED THAT the appearance of Jonathan B. Miller in this matter is terminated; IT IS FURTHER ORDERED THAT the Clerk of Court shall remove Mr. Miller from the docket sheet in this matter. IT IS SO ORDERED. Attorney Jonathan Benjamin Miller terminated. (Signed by Judge Edgardo Ramos on 1/7/2020) (kv) (Entered: 01/07/2020)
169 USCA OPINION (Certified) as to 126 Notice of Interlocutory Appeal, filed by Matthew G. Whitaker, United States Department of Justice. USCA Case Number 19−267(L). On appeal from a judgment entered in the United States District Court for the Southern District of New York (Edgardo Ramos, Judge), which (1) mandates that defendants release withheld 2017 Byrne Program Criminal Justice Assistance funds to plaintiffs, and (2) enjoins defendants from imposing certain immigrationrelated conditions on such grants, defendants argue that the district court erred in holding that the challenged conditions violate the Administrative Procedure Act and the United States Constitution. To summarize, we conclude as follows: (1) The Attorney General was statutorily authorized to impose all three challenged conditions on Byrne grant applications. a. The Certification Condition (1) is statutorily authorized by 34 U.S.C. § 10153(a)(5)(D)s requirement that applicants comply with all other applicable Federal laws, and (2) does not violate the Tenth Amendments anticommandeering principle; b. The Notice Condition is statutorily authorized by 34 U.S.C. § 10153(a)(4)s reporting requirement, § 10153(a)(5)(C)s coordination requirement, and § 10155s rulemaking authority; c. The Access Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(C)s coordination requirement, and § 10155s rule−making authority. (2) The Attorney General did not overlook important detrimental effects of the challenged conditions so as to make their imposition arbitrary and capricious. Accordingly, (1) We REVERSE the district courts award of partial summary judgment to plaintiffs; (2) We VACATE the district courts mandate ordering defendants to release withheld 2017 Byrne funds to plaintiffs, as well as its injunction barring defendants from imposing the three challenged immigration−related conditions on such grants; and (3) We REMAND the case to the district court, a. with directions that it enter partial summary judgment in favor of defendants on plaintiffs challenge to the three immigration−related conditions imposed on 2017 Byrne Program grants; and b. insofar as there remains pending in the district court plaintiffs challenge to conditions imposed by defendants on 2018 Byrne Program grants, for further proceedings consistent with this opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 02/26/2020. [This document also entered in the related case: 18−cv−6474]..(nd) (Entered: 02/26/2020)
Transmission of USCA Opinion to the District Judge re: 169 USCA Opinion..(nd) (Entered: 02/26/2020)
170 NOTICE OF APPEARANCE by Charles E.T. Roberts on behalf of Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker..(Roberts, Charles) (Entered: 02/27/2020)
171 PROPOSED ORDER FOR SUBSTITUTION OF ATTORNEY. Document filed by Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker..(Roberts, Charles) (Entered: 02/27/2020)
172 CONSENT ORDER GRANTING SUBSTITUTION OF ATTORNEY, The substitution of attorney is hereby approved and so ORDERED. Attorney Charles E.T. Roberts for United States Department of Justice,Charles E.T. Roberts for Matthew G. Whitaker added. Attorney Daniel Mauler terminated. (Signed by Judge Edgardo Ramos on 2/28/2020) (kv) (Entered: 02/28/2020)

 
 Case 1:18-cv-06471-ER Document 1 Filed 07/18/18 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATES OF NEW YORK,

CONNECTICUT, NEW JERSEY,

and

WASHINGTON,

and

COMMONWEALTHS

OF

MASSACHUSETTS and VIRGINIA,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF JUSTICE; and JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,

Defendants.

CIVIL ACTION NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. In our federal system, States have primary responsibility for the design of law enforcement policies to keep our communities safe and promote trust between law enforcement agencies and the residents they serve. The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program is a mandatory formula grant that Congress created to provide States with a reliable source of funding to promote public safety while maximizing their discretion to tailor their law enforcement efforts to local needs. Congress has appropriated hundreds of millions of dollars in annual grant funds to that end. Contrary to this congressional intent, however, the United States Department of Justice (“DOJ”) has now decided to coerce States and localities into enforcing the federal government’s civil immigration priorities by conditioning Byrne JAG funding on compliance with immigration-related conditions that have nothing to do with the program’s purpose. Plaintiffs—the States of New York, Connecticut, New Jersey, and Washington
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and the Commonwealths of Massachusetts and Virginia (“the States”)—challenge these unconstitutional and illegal conditions, and seek declaratory and injunctive relief to protect their ability to pursue their own law enforcement prerogatives in the manner that best achieves the safety and security of their communities.
2. The Byrne JAG program is the primary source of federal criminal justice funding for States and localities and is designed to “give state and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). Byrne JAG funds have been used to support a diverse array of programs tailored to local law enforcement needs, including initiatives to combat gun violence, reduce violent crime, provide substance abuse services, support diversion and re-entry programs, improve criminal records systems, fight organized crime, prevent sexual abuse, and fund domestic violence legal advocacy.
3. On July 25, 2017, DOJ announced that it was imposing three immigration-related conditions on Fiscal Year (“FY”) 2017 Byrne JAG funds. The conditions require States and localities to (1) provide access to their correctional facilities for federal immigration enforcement agents (the “access condition”); (2) provide advance notice—i.e., as early as practicable upon request—to federal immigration authorities before an individual’s scheduled release from custody (the “notice condition”); and (3) accept various conditions relating to 8 U.S.C. § 1373, which prohibits States and localities from restricting their officials from communicating with federal immigration authorities “regarding the citizenship or immigration status, lawful or unlawful, of any individual” (collectively, the “Section 1373 conditions”). In addition, States are required to monitor their subgrantees to ensure their compliance with the notice and access conditions, and report to DOJ if they believe that a subgrantee has violated Section 1373.
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4. DOJ’s decision to impose these sweeping conditions on Byrne JAG grantees represents an unlawful, ultra vires attempt to force States and localities to forsake their own policy judgments and aid in federal civil immigration enforcement. Nothing in the Byrne JAG statute “grant[s] the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for their failure to comply with those conditions.” City of Chicago v. Sessions, 888 F.3d 272, 283 (7th Cir. 2018).
5. DOJ has thus forced the States into an untenable position: accept unlawful and unconstitutional conditions that diminish our sovereign ability to set our own law enforcement priorities and protect our communities, or forfeit Byrne JAG funding, thus undermining the vital programs that such funding supports.
6. Accordingly, the States file this action seeking a declaratory judgment that the notice, access, and Section 1373 conditions are unlawful, and a permanent injunction enjoining DOJ from imposing these conditions on any Byrne JAG applicant in order to receive the funds.
JURISDICTION AND VENUE 7. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). Jurisdiction is also proper under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702. 8. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. The State of New York is a resident of this district, and a substantial part of the events or omissions giving rise to this Complaint occurred and continue to occur within the Southern District of New York.
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PARTIES 9. Plaintiff the State of New York, represented by and through its Attorney General, Barbara D. Underwood, is a sovereign state in the United States of America. The Attorney General is New York State’s chief law enforcement officer, and is authorized to pursue this action pursuant to N.Y. Executive Law § 63. 10. Plaintiff the State of Connecticut, represented by and through its Attorney General, George Jepsen, is a sovereign state in the United States of America. 11. Plaintiff the Commonwealth of Massachusetts is a sovereign state in the United States of America. Massachusetts is represented by Attorney General Maura Healey, who is the chief law enforcement officer of Massachusetts. The Massachusetts Executive Office of Public Safety and Security (“EOPSS”) is the state agency responsible for applying for, obtaining, and disbursing funds to subgrantees under the Byrne-JAG program. 12. Plaintiff the State of New Jersey, represented by and through its Attorney General, Gurbir S. Grewal, is a sovereign state in the United States of America. As the State’s Attorney General, Grewal is the head of the New Jersey Department of Law and Public Safety, N.J. Stat. Ann. § 52:17B-2. The mission of the Department of Law and Public Safety is to protect the safety, security, and quality of life of the people of New Jersey through an integrated and coordinated structure of law enforcement and regulatory agencies. The Department of Law and Public Safety is also the agency responsible for applying for, obtaining, and disbursing funds to subgrantees under Byrne JAG. 13. Plaintiff the Commonwealth of Virginia, represented by and through its Attorney General, Mark Herring, is a sovereign state in the United States of America. 14. Plaintiff the State of Washington, represented by and through its Attorney General,
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Robert W. Ferguson, is a sovereign state in the United States of America. The Washington State Attorney General is the chief legal advisor to the State. The Attorney General’s powers and duties include acting in federal court on matters of public concern.
15. The States are aggrieved by Defendants’ actions and have standing to bring this action.
16. Defendant United States Department of Justice (“DOJ”) is an agency of the United States government and has responsibility for implementing the Byrne JAG program.
17. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is the federal official in charge of the U.S. Department of Justice. The Attorney General is sued in his official capacity.
ALLEGATIONS I. The Byrne JAG Program
18. The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197, which created the first block grants for States and localities to use for law enforcement and criminal justice programs.1 Recognizing that “crime is essentially a local problem that must be dealt with by State and local governments,” 82 Stat. at 197, Congress designed the grant to provide a reliable funding stream that States and localities could use in accordance with State and local law enforcement policies.2
1 See Justice System Improvement Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167, 1179 (amending Title I of the 1968 Act and reauthorizing law enforcement block grants to States and local governments); Justice Assistance Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2077-85 (same); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, pt. E, 102 Stat. 4181, 4329 (amending Title I of the 1968 Act and creating a formula law-enforcement grant); Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006) (amending Title I of the 1968 Act and creating the modern Byrne JAG program). 2 See, e.g., S. Rep. No. 90-1097, at 2 (1968) (stating that Congress sought to encourage States and localities to adopt programs “based upon their evaluation of State and local problems of law enforcement”); see also Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (reviewing the legislative history of the 1968 Act and concluding that “[t]he dominant
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19. To ensure federal deference to local priorities, the 1968 Act prohibited federal agencies and executive branch officials from using law enforcement grants to “exercise any direction, supervision, or control over any police force or any other law enforcement agency of any State or any political subdivision thereof.” Id. § 518(a), 82 Stat. at 208. Although Congress has repeatedly modified the structure and terms of the law enforcement grants authorized under Title I of the 1968 Act, the prohibition originally set forth in § 518 of the 1968 Act remains in effect with virtually no modification, and is now codified in the same chapter of the U.S. Code as Byrne JAG. See 34 U.S.C. § 10228(a). The full text of Section 10228(a) provides: “Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” Id.
20. Congress codified the modern Byrne JAG program in 2006.3 34 U.S.C. §§ 10151– 58. The Byrne JAG program is administered by DOJ through its Office of Justice Programs. Like its predecessors, Byrne JAG aims to “give state and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). To that end, the Byrne JAG statute gives recipients substantial discretion to use funds for eight “broad purposes,” id., including law enforcement, crime prevention and education, and drug treatment, 34 U.S.C. § 10152(a)(1).
21. DOJ is required by law to issue grants “in accordance with the formula” set forth
concern of Congress apparently was to guard against any tendency towards federalization of local police and law enforcement agencies”). 3 The program is named after a former New York City police officer who was killed in the line of duty. See About Officer Byrne, https://goo.gl/pLm8JM. Congress appropriated for the program—which consolidated the existing Byrne formula program with another law enforcement block grant program—in an appropriations act passed on December 8, 2004. See P.L. 108-447, 118 Stat. 2809, 2863 (Dec. 8, 2004). Thus, although the program was not codified until 2006, some states began receiving awards under the program in FY 2005.
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in the Byrne JAG statute. Id. Specifically, “[o]f the total amount appropriated” by Congress, the U.S. Attorney General “shall, except as provided in paragraph (2), allocate” fifty percent of the funds based on each State’s population and fifty percent based on each State’s crime rate. Id. § 10156(a)(1). The exception in paragraph (2) provides that each State must receive at least onequarter of one percent of the funds appropriated by Congress for a given year, regardless of what the formula would otherwise dictate. Id. § 10156(a)(2).
22. Of the money allocated to each State, sixty percent of the funding “shall be for direct grants to States,” id. § 10156(b)(1), and forty percent “shall be for grants” directly to localities (compared within a State based on crime rate), id. § 10156(b)(2), (d). Each State is required to allocate a portion of its award to localities within the State. See id., § 10156(c)(2). Thus, some localities are both direct grant recipients and subgrantees of the States.
23. Unlike discretionary grant programs, which agencies award on a competitive basis, “formula grants … are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d, 1084 1088 (9th Cir. 1989). Thus, if a grantee satisfies the statutory requirements, it is entitled to receive what the formula dictates.
24. Under the Byrne JAG statute, States and local governments are entitled to their share of the formula allocation as long as they use the funds to further one or more of the eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H), and their applications contain a series of statutorily prescribed certifications and attestations, see id. § 10153(a).
25. States and localities are required to submit an application to receive Byrne JAG funds each fiscal year. See 34 U.S.C. § 10153(a). The application must include the following items, among others: a certification that program funds will not be used to supplant state or local funds,
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id. § 10153(a)(1); an assurance that the application was made available for comment by the public, and by neighborhood or community-based organizations, id. § 10153(a)(3); an assurance that the applicant will “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” id. § 10153(a)(4); and a certification that programs to be funded meet the requirements of the Byrne JAG statute, that all the information in the application is correct, that there has been appropriate coordination with affected agencies, and that “the applicant will comply with all provisions of this part and all other applicable Federal laws,” id. § 10153(a)(5).
26. The Byrne JAG statute does not include any provision expressly authorizing DOJ to impose conditions on Byrne JAG funding. II. The States’ Use of Byrne JAG Funding
27. For nearly fifty years, the States and local subgrantees have used grant funds under Byrne JAG and its predecessor grant programs to support a broad array of critical law enforcement programs tailored to local needs.
28. The States have received Byrne JAG awards every year since the program was created.
A. New York 29. The State of New York has used Byrne JAG funding for a variety of purposes, including to support a multi-county program to combat gun violence, improve criminal records systems, enhance the services of forensic laboratories, and support prosecution and defense services.4
4 See New York State’s Application for Byrne JAG Program Funds—FFY 2016, at 4-9 (June 30, 2016), at https://goo.gl/3WsuWr.
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30. New York’s subgrantees also have used Byrne JAG funding for varied and successful programs. For example, the Buffalo Veterans Treatment Court used a Byrne JAG award of $86,147 to divert 100 veterans from the prison system and provide them with “health, education, and employment resources and services which have been critical to the ‘re-adjustment challenge’ these combat veterans have faced upon returning home.”5 The Council of Thought and Action Youth in Suffolk County received $10,000 in Byrne JAG funding to support the initiative’s outreach workers, who identify and engage at-risk youth and young adults between the ages of 13 and 24 years, assess their needs, and provide them with guidance and mentoring.6
31. On June 26, 2018, New York was notified that it received a Byrne JAG award for FY 2017 in the amount of $8,879,161.7
32. For the FY 2017 grant cycle, New York plans to use its Byrne JAG funding to support a number of criminal justice, law enforcement, and drug treatment priorities. In particular, New York plans to use FY 2017 Byrne JAG funding to:
a. cover 50% of the cost of the purchase and installation of Livescan fingerprint technology equipment at local law enforcement agencies to facilitate the timely receipt of fingerprint search results when an individual is arrested;
b. expand a demonstration project that uses Byrne JAG to fund staff positions at police and prosecutorial agencies that are focused on investigating and prosecuting nonfatal shooting cases;
5 Success Story Details: Buffalo Veterans Treatment Court, U.S. Department of Justice Bureau of Justice Assistance, https://www.bja.gov/SuccessStoryDetail.aspx?ssid=11. 6 Success Story Details: Council of Thought and Action (COTA) Youth, U.S. Department of Justice Bureau of Justice Assistance, https://www.bja.gov/SuccessStoryDetail.aspx?ssid=97. 7 See N.Y. FY 2017 Byrne JAG Award, Ex. A.
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c. provide annual subgrants to district attorney and public defender offices in numerous counties to enhance the quality and effectiveness of prosecution and defense services, including efforts to combat illegal gun trafficking and improve defense services for individuals processed through specialty courts, such as domestic violence courts, veterans courts, and drug courts;
d. support the creation of a New York State Criminal Justice Research Consortium to connect criminal justice practitioners to academic researchers to expand the use of evidence-based practices;
e. support New York’s SNUG8 street outreach program, a gun violence prevention initiative active in eleven jurisdictions throughout the State that have had elevated levels of shooting incidents;
f. partially or fully fund twenty-nine staff positions at the New York State Office of Information Technology dedicated to maintaining critical public information technology systems and platforms such as the State’s fingerprint identification system and criminal history database;
g. purchase and install video equipment for recording custodial interrogations at local law enforcement agencies; and
h. cover roughly one-half of the costs of approximately thirty crime analyst positions at four Crime Analysis Centers that serve the Buffalo, Rochester, Syracuse, and Albany regions.
33. In addition to these planned programs, New York plans to provide FY 2017 Byrne JAG funding to subgrantees to support a variety of criminal justice and drug treatment programs.
8“Guns” spelled backwards.
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A broad range of local and State government subgrantees benefit from these funds, including police agencies, prosecutors, and social services agencies.
34. New York’s 2017-18 enacted state budget included $10 million in appropriation authority to support state and local projects funded from the state’s FY2017 Byrne JAG award. These funds were reappropriated in the 2018-19 enacted state budget.
35. New York’s deadline to accept the Byrne JAG award is August 10, 2018. B. Connecticut 36. Connecticut typically distributes most of its funds to its subgrantees, including various state agencies and local jurisdictions. Most of the state-level funds are committed to state agency projects focused on enhancing components of the criminal justice system, while most subgrants to local jurisdictions are dedicated to local law enforcement functions, with a priority given to projects focusing on narcotics, violent crime reduction, technology improvements and equipment. 37. On June 26, 2018, Connecticut was notified that it received a Byrne JAG award for FY 2017 in the amount of $1,711,049.9 38. If Connecticut accepts the FY 2017 JAG grant, it intends to disburse most of the money to various state agencies and local jurisdictions to assist in their law enforcement and criminal justice programs, including funding for stipends for local police to ensure their continued participation in and support of Connecticut’s Statewide Narcotic Task Force, substance abuse treatment services and other re-entry services in Connecticut prisons and communities, and the State’s opioid intervention project for local police departments, the purpose of which is to reduce opioid-related deaths and reduce opioid-related crime and incarceration.
9 See Conn. FY 2017 Byrne JAG Award, Ex. B.
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39. Connecticut’s deadline to accept the Byrne JAG award is August 10, 2018. C. Massachusetts 40. Massachusetts has spent or will spend funds received from its Byrne JAG award to create or support various law enforcement programs and initiatives, such as programs that provide wrap-around services to high-risk youth, including through faith-based and communitybased efforts; programs aimed at reducing heroin and other opioid use through prevention, intervention, treatment, interdiction, and system readiness; collaborative projects that promote efforts of local agencies to provide and ensure comprehensive reintegration programs for juvenile and adult offenders reentering the community; and projects that promote the collaboration of law enforcement, the courts, and local victim service agencies in responding to domestic violence and sexual assault incidents. 41. The various subgrantees of EOPSS have spent or will spend funds received from Massachusetts’ Byrne JAG award to create or support various law enforcement programs and initiatives, such as hiring case managers with expertise in substance abuse and counseling to serve as a liaison between law enforcement and the treatment centers where individuals are referred for care; increasing community outreach in high-risk areas; implementing training and early intervention tools for at-risk youth; and implementing data and analysis to drive strategies to reduce crime and improve operational effectiveness. 42. On June 26, 2018, Massachusetts was notified that it received a Byrne JAG award for FY 2017 in the amount of $3,453,006.10 43. Massachusetts has planned on using its FY 2017 Byrne JAG award to fund programs focused on reducing gun, gang, and youth violence; evidence-based reentry programs to
10 See Mass. FY 2017 Byrne JAG Award, Ex. C.
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reduce recidivism; programs targeting domestic violence and sexual assault offenders; efforts geared toward combating heroin, opioids, and other illegal drugs; and collaborative prosecution and prevention programs.
44. Massachusetts’ deadline to accept the Byrne JAG award for FY 2017 is August 10, 2018.
D. New Jersey 45. New Jersey has spent Byrne JAG funds that it received in FY 2014 through 2016 to create or support various law enforcement programs and initiatives, such as the State’s MultiJurisdictional Gangs, Organized Crime and Narcotics Task Force, the Statewide Gun Violence Reduction Initiative, the Atlantic City Organized Crime Task Force, the Prosecutor Supervision Training Initiative, building a password recovery server that helps investigators access devices that may contain evidence of a crime, and supporting the integration and enhancement of New Jersey’s statewide criminal justice information sharing networks. 46. Subgrantees of the New Jersey Department of Law and Public Safety spent Byrne JAG funds that they received in FY 2014 through 2016 to create or support various law enforcement programs, such as the Body-Worn Cameras Initiative which helps municipal law enforcement agencies acquire body-worn cameras, and county Multi-Jurisdictional Gangs, Guns, and Narcotics Task Forces. In addition, past Byrne JAG awards have funded the implementation of Megan’s Law requirements by county prosecutor’s offices, a study analyzing the effectiveness of New Jersey’s inmate Re-entry Initiatives, and updating inmate videoconferencing equipment. 47. The New Jersey legislature anticipated receiving, and accounted for, the Byrne JAG award for FY 2017 as a “federal resource” when it passed the State’s most recent appropriations act.
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48. On June 26, 2018, New Jersey was notified that it received a Byrne JAG award for FY 2017 in the amount of $4,047,274.11
49. The Division of Criminal Justice of the New Jersey Department of Law and Public Safety has planned on using the FY 2017 grant to fund the following: the Multi-Jurisdictional Gangs, Organized Crime and Narcotics Task Force, which is responsible for investigating and prosecuting members of criminal gang organizations, gun traffickers, and gun trafficking organizations whose operations transcend county jurisdictions or operate across state lines into, or out of, New Jersey; the Division’s Megan’s Law Coordinator, who is responsible for the coordination and oversight of all of the agencies responsible for implementing Megan’s Law; and the Prosecutor Supervision Training Initiative, which ensures the availability of cost-free, highquality training to State, county, and municipal law enforcement officers engaged in the investigation of gangs, drugs, and related violent criminal activity.
50. The Division of State Police of New Jersey’s Department of Law and Public Safety plans to use the FY 2017 monies to fund the Organized Crime, Gangs, and Narcotics Task Force, which is responsible for spearheading New Jersey’s ongoing war on drugs and gangs with strategic initiatives derived from intelligence-led policing efforts. The Division also plans to fund the State Police’s Ballistics Unit, which routinely serves agencies throughout the State by providing expert advice on firearms-related evidence, preparing reports, offering courtroom testimony, providing lectures, and entering and correlating images in the National Integrated Ballistic Information Network.
51. New Jersey’s deadline to accept the Byrne JAG award is August 10, 2018.
11 See N.J. FY 2017 Byrne JAG Award, Ex. D.
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D. Virginia 52. The Commonwealth of Virginia has used Byrne JAG funding to cover the administrative costs that support the salaries of critical staff in various divisions within the Virginia Department of Criminal Justice Services (VA-DCJS), including its Division of Law Enforcement, and to supplement essential staffing needs within the VA-DCJS Director’s Criminal Justice Research Center. 53. In recent years, Virginia’s subgrantees have used Byrne JAG funding to support various local law enforcement programs and initiatives, including crime reduction and prevention efforts, initiatives to upgrade law enforcement equipment, initiatives to support specialized law enforcement training, and the use of body cameras and life-saving naloxone. 54. On June 26, 2018, DOJ notified Virginia that it had been awarded $3,353,534 in Byrne JAG monies for FY 2017.12 55. Virginia intends to use its FY 2017 Byrne JAG funding to make subgrants to localities and to continue funding to various law enforcement agencies and criminal justice partners. Virginia also plans to use Byrne JAG funds to continue to support the critical staffing and administrative needs at the VA-DCJS. 56. Virginia, through its state budget process, has also set aside funding to support longterm and ongoing law enforcement projects in anticipation of receiving FY 2017 Byrne JAG monies. 57. Virginia’s deadline for accepting its FY 2017 Byrne JAG allocation is August 10, 2018.
12 See Va. FY 2017 Byrne JAG Award, Ex. E.
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E. Washington 58. Washington has used Byrne JAG funding to support a number of criminal justice and law enforcement programs, including narcotics task forces, drug courts, and youth intervention programs. Washington also has used this funding to support high-impact offender prosecution and tribal law enforcement efforts, and to improve its state criminal history records. In addition, Byrne JAG funding has supported domestic violence legal advocacy and efforts to combat sexual abuse. Funds also have been directed to mitigate the gang threat in prisons and to support the Governor’s Council on Substance Abuse. 59. Washington’s subgrantees have used Byrne JAG funding for varied law enforcement purposes, including training, staffing, travel, equipment, professional services, and facilities, among others. These funds have been vital in Washington’s attempts to combat criminal organizations. 60. On June 26, 2018, DOJ notified Washington that it had been awarded $3,277,891 in Byrne JAG monies for FY 2017.13 61. Washington intends to use its FY 2017 Byrne JAG award to support multijurisdictional drug and gang task forces. 62. The chief law enforcement agencies of Washington State are the county sheriffs. Multi-jurisdictional task forces are an important tool in combating drug trafficking and gang violence. Drug trafficking, and the violence associated with this activity, is nearly impossible to address on a jurisdiction-by-jurisdiction basis, as drug trafficking organizations often operate at a level above the capacity of most local jurisdictions to adequately investigate and prosecute. These criminal organizations operate across city, county, and state boundaries, and therefore law
13 See Wash. FY 2017 Byrne JAG Award, Ex. F.
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enforcement cannot adequately investigate, disrupt, or dismantle these organizations when only a portion of their operation is targeted by local law enforcement.
63. Funding from the Byrne JAG program both encourages local agencies to participate in regional task forces, and helps local law enforcement agencies to offset costs associated with combatting drug trafficking and gang violence.
64. Washington has budgeted in anticipation of its receipt of the FY 2017 Byrne JAG award. Because these funds are distributed statewide, any delay or failure in receiving grant funding will negatively impact both Washington State as well as the numerous cities and counties in Washington that depend on this grant funding to combat crime and maintain public safety.
65. Washington’s deadline for accepting its Byrne JAG allocation is August 10, 2018. III. DOJ’s Immigration-Related Byrne JAG Conditions
66. On January 25, 2017, President Trump issued Executive Order 13768. Section 9(a) of the order threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” That section was permanently enjoined by a federal district court because it violated numerous provisions of the United States Constitution.14
67. DOJ subsequently sought to achieve a similar goal by imposing three immigrationrelated conditions on FY 2017 Byrne JAG funds.15 On July 25, 2017, DOJ announced that it would impose these conditions and provided a one-page “Backgrounder” and a press release, neither of which explained how or why DOJ decided to impose these immigration-related conditions, how the conditions would advance the interests of the Byrne JAG program, or what alternatives DOJ
14 County of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (permanent injunction). 15 See Press Release, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Programs (July 25, 2017), available at https://goo.gl/VH5wGU; Backgrounder on Grant Requirements (July 25, 2017), available at https://goo.gl/ZLgXMC; Byrne JAG FY2017 State Solicitation, available at https://www.bja.gov/funding/JAGstate17.pdf
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had considered. 68. On August 24, 2017, one day before State applications for FY 2017 Byrne JAG
funds were due, DOJ published a sample final award document containing the three immigrationrelated conditions and stated that identical conditions would be imposed on other applicants.
69. The access condition requires all State and local grantees and State subgrantees to have a statute, rule, regulation, policy or practice designed to ensure that, upon request, federal agents may access any state or state-contracted or local or local-contracted correctional facility to question suspected aliens about their right to be, or remain, in the United States.
70. The notice condition requires all State and local grantees and State subgrantees to have a statute, rule, regulation, policy or practice designed to ensure that State and local officers will respond as soon as practicable to any formal written request from the Department of Homeland Security to a correctional facility seeking advance notice of a particular alien’s scheduled release date and time.
71. In addition, States are required to monitor all of their subgrantees to ensure they are complying with the notice and access conditions.
72. The States also must accept various conditions related to 8 U.S.C. § 1373, which prohibits States and localities from restricting their officials from communicating with federal immigration authorities “regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).16 The Section 1373 conditions will require States to:
 Comply with Section 1373 throughout the duration of the award;
16 See also 8 U.S.C. § 1373(b) (“Notwithstanding any other provision of Federal, state, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”).
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 Diligently monitor the compliance of all subgrantees with Section 1373; and  Notify DOJ in writing if the State becomes aware of “credible evidence” that
any subgrantee has violated Section 1373. 73. DOJ also requires three certifications from the States. The first, which must be by the State’s Chief Executive, i.e., the Governor, attests to the State’s compliance with Section 1373 and the other grant conditions. The second, which must be by the State’s Chief Legal Officer, certifies the State’s compliance with Section 1373 and that the Legal Officer understands that subgrantees must also comply with Section 1373. The third certification requires the State employee who signs the grant award to certify the State’s compliance with all other grant conditions. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies. 74. A number of jurisdictions have brought lawsuits challenging DOJ’s legal authority to impose one or more of the immigration-related conditions on Byrne JAG funding. All courts to have considered the question to date have held that DOJ likely or definitely lacks authority to impose these conditions. 75. The City of Chicago sued on August 7, 2017, challenging the notice and access conditions and seeking a declaration that it complies with Section 1373.17 On September 15, 2017, a federal court in Chicago issued a nationwide preliminary injunction that prohibited DOJ from imposing the notice and access conditions on any Byrne JAG applicant.18 Rather than disburse the Byrne JAG awards without these conditions, DOJ instead decided to effectively suspend the
17 Compl., City of Chicago v. Sessions, No. 17-cv-05720, 264 F. Supp. 3d 933 (N.D. Ill. Aug. 7, 2017), ECF No. 1. 18 City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017).
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program by withholding all further FY 2017 grant awards until the injunction was narrowed or there was a final decision on the merits in the Chicago action.
76. On April 19, 2018, the Seventh Circuit unanimously affirmed the Chicago district court’s nationwide preliminary injunction on the notice and access conditions and its ruling that DOJ likely lacks authority to impose those two conditions.19
77. On June 26, 2018, the Seventh Circuit issued a partial stayed of the nationwide preliminary injunction previously issued by the district court in Chicago, limiting the effect of the injunction to Chicago. The Seventh Circuit also granted en banc review solely on the question of the propriety of the nationwide scope of the injunction.20 The Seventh Circuit will hear argument en banc in September 2018 on that limited issue. DOJ did not challenge the Seventh Circuit’s ruling that DOJ likely lacks authority to impose the notice and access conditions.
78. While the Chicago lawsuit was pending in the district court, the State of California and City of San Francisco filed lawsuits challenging the notice, access, and Section 1373 conditions.21 On March 5, 2018, a California district court denied DOJ’s motion to dismiss both the California and San Francisco lawsuits, holding that those jurisdictions had stated plausible claims that the challenged conditions were unlawful.22
19 City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018). 20 City of Chicago v. Sessions, 17-2991 (7th Cir. June 4, 2018), Doc. No. 128 (granting en banc review on scope of preliminary injunction); Order, Chicago v. Sessions, 17-2991 (7th Cir. June 26, 2018), Doc. No. 134 (granting partial stay of injunction as to geographic areas beyond the City of Chicago). 21 Compl., California ex rel. Becerra v. Sessions (“California”), No. 17-cv-4701, (N.D. Cal. Aug. 14, 2017), ECF No. 1; Compl., City of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. Aug. 11, 2017), ECF No. 1. 22 Order Denying Mot. to Dismiss, California, No. 17-cv-4701 (Mar. 5, 2018), ECF No. 2018; Order Denying Mot. to Dismiss, City of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. Mar. 5, 2018), ECF No. 78. The district court denied California’s request for a preliminary injunction enjoining DOJ from enforcing the Section 1373 condition on the State and its subdivisions, finding that the record was insufficient at the motion to dismiss stage to
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79. Shortly after the lawsuits in California were filed, the City of Philadelphia filed its own lawsuit.23 On June 6, 2018, the district court in Philadelphia permanently enjoined DOJ from imposing the three conditions on Philadelphia and ordered DOJ to immediately disburse the Byrne JAG funds to Philadelphia.24
80. On June 26, 2018, just hours after the Seventh Circuit issued its decision limiting the injunction to Chicago, DOJ issued grant award letters to the States. The States have 45 days to decide whether to accept the awards with the new immigration-related conditions. IV. All Three Immigration-Related Conditions Are Unlawful.
81. All three immigration-related conditions are unlawful for a number of reasons. 82. First, DOJ has no statutory authorization to impose the conditions. An “agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Here, nothing in the statute’s text, structure, purpose, or history suggests that Congress granted DOJ authority to prescribe generally applicable substantive conditions like the notice, access, and Section 1373 conditions at issue here. See City of Chicago, 888 F.3d at 285-87; City of Philadelphia, --- F. Supp. 3d ---, 2018 WL 2725503, at *25. 83. The fact that Congress designed Byrne JAG as a formula grant provides further confirmation that DOJ lacks discretion to impose these substantive conditions. Formula grants leave no discretion to the administering agency: if a grantee satisfies the statutory requirements, it
enjoin the Section 1373 condition. See Order Denying Am. Mot. for Prelim. Inj. at 26-27, California, No. 17-cv-4701 (N.D. Cal. Mar. 5, 2018), ECF No. 89. 23 Compl., City of Philadelphia v. Sessions, No. 17-cv-03894, (E.D. Pa. Aug. 30, 2017), ECF No. 1. 24 City of Philadelphia v. Sessions, --- F. Supp. 3d. ---, 2018 WL 2725503, at *40-45 (E.D. Pa. 2018).
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is entitled to the grant amount that the formula dictates. See, e.g., City of Los Angeles, 865 F.2d at 1088.25 Accordingly, DOJ’s imposition of the new conditions is ultra vires for purposes of the Administrative Procedure Act.
84. Second, because Congress did not authorize DOJ to impose conditions on Byrne JAG, DOJ’s actions here violate the Separation of Powers between Congress and the Executive. The Executive Branch may not arrogate to itself the powers that the Constitution reserves to Congress, as it has attempted to do here. The Executive has no authority to amend or cancel an appropriation that Congress has duly enacted. Nor can executive officials choose to spend less than the full amount of funding that Congress has authorized under a statute.
85. Third, the immigration-related conditions violate 34 U.S.C. § 10228(a), which is codified in the same chapter of the U.S. Code as the Byrne JAG statute and provides that “[n]othing in this title or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” This language has been carried forward in every law enforcement grant since the Omnibus Crime Control and Safe Streets Act of 1968—a predecessor to the Byrne JAG program and the first federal block grant program for State and local law enforcement.26 The legislative history of § 10228 makes clear that Congress intended to incorporate anti-commandeering principles into the
25 See also Paul G. Dembling & Malcolm S. Mason, Essentials of Grant Law Practice § 5.03, 33-35 (1991). 26 See Omnibus Crime Control and Safe Street Act of 1968, Pub. L. No. 90-351, § 518(a), 82 Stat. 197, 208 (1968); see generally John K. Hudzik, Federal Aid to Criminal Justice: Rhetoric, Results, Lessons 1-68 (1984) (describing the origins of the Safe Streets Act).
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grant context to prevent executive officials from using a grant like Byrne JAG to interfere with state and local law enforcement policy.27
86. All three immigration-related conditions violate Section 10228(a) because they compel States to act as enforcement arms of federal immigration authorities by, for example, requiring States to monitor and report to DOJ whether all of the States’ subgrantees comply with Section 1373.
87. Fourth, the Section 1373 conditions are invalid because Section 1373 is unconstitutional. See South Dakota v. Dole, 483 U.S. 203, 210-211 (1987) (federal government cannot impose unconstitutional conditions). In Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018), the Supreme Court held that Congress runs afoul of the anti-commandeering principles of the Tenth Amendment when it “unequivocally dictates what a state legislature may and may not do.” Section 1373 violates this rule because it directly prohibits States and localities enacting laws, rules, or policies that “prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Nationalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). See, e.g., City of Philadelphia, --- F. Supp. 3d. ---, 2018 WL 2725503, at *32-33 (citing Murphy and holding that 8 U.S.C. § 1373 violates the Tenth Amendment).
88. Finally, the conditions are arbitrary and capricious because DOJ imposed them without any explanation, reasoning, or opportunity for exchange with state or local governments regarding the likely impact of the conditions on state and local efforts to promote public safety.
27 See, e.g., Amendments to Title I (LEAA) of the Omnibus Crime Control and Safe Streets Act: Hearing Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. of the Judiciary, 94th Cong. 407-08 (1975) (statement of Richard W. Velde, Administrator of the LEAA) (“It is disturbing that it should even be suggested that LEAA ought to undertake to redirect the efforts of state and local law enforcement agencies . . . . The Congress has continuously emphasized that law enforcement is, and must remain, essentially a state and local responsibility. Section 518(a) of the Safe Streets Act is the embodiment of this appropriate philosophy.”).
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V. The States Are Harmed by DOJ’s Imposition of the Immigration-Related Conditions On Byrne JAG funding. 89. The three immigration-related conditions imposed by DOJ upon applicants for FY
2017 Byrne JAG funding threaten the States and their localities with serious, immediate, and irreparable harm.
90. In our federal system, the States and localities have primary responsibility for the design of law-enforcement policies to keep their residents safe. See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power . . . reposed in the States[] than the suppression of violent crime and vindication of its victims.”).
91. Recognizing that the States possess the primary authority for maintaining public safety, Congress designed the Byrne JAG program to maximize the discretion of States and their localities to decide how to best use these funds to advance their law enforcement priorities and make their communities safer. The immigration-related conditions constrain the very choices that Congress sought to safeguard.
92. DOJ’s actions place the States in an untenable position. If the States do not acquiesce to the conditions, they will forfeit tens of millions of dollars in law enforcement funding, potentially compromising the critical law enforcement and criminal justice programs those funds support.
93. If they accept these conditions, the States will be forced to relinquish sovereign control over state law enforcement officials and state law enforcement policies, including policy choices to allow localities to adopt law enforcement and criminal justice policies based on local needs. Localities that lawfully limited voluntary cooperation with federal immigration officials will now be compelled to adopt policies that undermine their relationships of trust with their immigrant communities, to the detriment of effective crime reporting and overall public safety in
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the States. Immigrants also may be deterred from seeking primary care and preventative health care services, undermining the public health efforts of States and localities. The trust between immigrants and state and local officials, “once destroyed by the mandated cooperation and communication with the federal immigration authorities, [cannot] easily be restored.” City of Chicago, 888 F.3d at 291.
94. Public safety will be further undermined because States will be unable to issue Byrne JAG subgrants to localities that DOJ believes do not comply with one or more of the three conditions. DOJ has previously sent letters to two major cities in New York State—the City of New York and Albany—alleging that these jurisdictions have laws or policies that violate Section 1373. These cities will be hampered in their ability to promote their law enforcement priorities if New York State is forced to withhold critical Byrne JAG funds from them. And the State itself is injured when its localities are unable to effectively police their communities. As another example, the Washington State Patrol is a subgrantee participant in multi-jurisdictional drug and gang task forces across Washington State. According to a longstanding federal consent decree, the Washington State Patrol is prohibited from participating in the enforcement of immigration laws. Without a Byrne JAG subgrant, the State Patrol will be hindered in its ability to participate in these critical task forces.
95. DOJ has also sought to require the States to monitor their subgrantees’ compliance with the three conditions—a process that will require the States to expend considerable time and money, including building an infrastructure to conduct inspections, review records, and compile and transmit data. And if Defendants disagree with the States’ determination that a subgrantee complies with the conditions, the States could lose other federal grants and face civil or criminal liability.
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96. Certifying compliance with Section 1373 is particularly perilous for States given
Defendants’ expansive and ever-changing interpretations of that statute’s meaning and application.
DOJ has advanced increasingly broad interpretations of what it means to comply with Section
1373. For example, DOJ has suggested that Section 1373 prevents jurisdictions from enacting
policies that define the time and manner in which their employees exchange immigration-status information with federal officials.28 DOJ also has suggested that Section 1373 requires
jurisdictions to not only provide advance notification of an alien’s scheduled release from state or
local custody, but also to facilitate transfers from State and local jails to federal immigration authorities.29 DOJ has further suggested that Section 1373 requires jurisdictions to not only share
the immigration and citizenship status of individuals, but that it also requires jurisdictions to share an alien’s home and work address and his scheduled release date from incarceration.30 On top of
all of this, DOJ has taken the position that jurisdictions have an affirmative obligation to
28 See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice (Oct. 11, 2017), available at https://www.justice.gov/opa/pressrelease/file/1003041/download (last visited July 6, 2018); Letter from Alan Hanson, Acting Assistant Attorney General, to the Hon. Jim Kenney, Mayor, City of Philadelphia (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003046/download (last visited July 6, 2018). 29 See Def.’s Proposed Findings of Fact 8-11, City of Philadelphia v. Sessions, No. 17-cv-3894 (E.D. Pa. May 17, 2018), ECF No. 200; Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Support 24-26, United States v. California, No. 18-cv-00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (suggesting California law violates § 1373 by restricting the transfer of aliens in state custody to federal custody). 30 See, e.g., Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Support 27-28, United States v. California, 18-cv-00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (asserting that the phrase “information regarding the citizenship or immigration status . . . of any individual” in § 1373 “does not merely denote an alien’s technical immigration status”); Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice, at 2 (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003041/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and (d) to not restrict New York officers from sharing information regarding the date and time of an alien’s release from custody.”). But at least one federal court has ruled that Section 1373 does not govern release dates or home or work addresses. Order re: United States of America’s Mot. for Prelim. Inj., United States v. California, 18-cv-490 (E.D. Cal. July 5, 2018), ECF No. 193.
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communicate DOJ’s interpretation of Section 1373 to their employees.31 Thus, DOJ requires States not only to certify compliance with the black-letter of Section 1373 but with DOJ’s ever-shifting interpretation of the scope of that statute.
CAUSES OF ACTION COUNT I
Violation of Separation of Powers 97. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 98. The Constitution vests the spending power in Congress, not the Executive Branch. U.S. Const. art. I § 8, cl. 1. 99. Congress may delegate some discretion to the Executive to decide how to spend appropriated funds, but that discretion is cabined by the scope of the delegation. See City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 100. The Executive cannot amend or cancel appropriations that Congress has duly enacted. See Train v. City of New York, 420 U.S. 35, 38, 44 (1975); In re Aiken Cnty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). 101. The new immigration-related conditions amount to a refusal to spend money appropriated by Congress, in violation of the Executive’s constitutional authority to administer the law.
31 See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice, at 1 (Oct. 11, 2017), available at https://www.justice.gov/opa/pressrelease/file/1003041/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that . . . New York would need to certify that it has communicated this interpretation to its officers and employees.”); Letter from Alan Hanson, Acting Assistant Attorney General, to the Hon. Jim Kenney, Mayor, City of Philadelphia, at 2 (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003046/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order to not restrict Philadelphia’s officers from sharing information regarding immigration status with federal immigration officers. The Department has also determined that Philadelphia would need to certify that it has communicated this interpretation to its officers and employees.”).
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102. Congress did not authorize the notice, access or 1373 conditions. Rather, those conditions were imposed by DOJ. Therefore, the three conditions amount to an improper usurpation of Congress’s spending power by the Executive.
103. The Byrne JAG statute does not authorize the U.S. Attorney General to impose generally applicable substantive conditions on grant recipients.
104. DOJ does not have authority under 34 U.S.C. § 10102(a)(6) to impose the three conditions.
105. DOJ also does not have the authority to determine that Section 1373 is an “applicable federal law” for purposes of 34 U.S.C. § 10153(a)(5)(D).
106. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General’s imposition of the three conditions violates the constitutional principle of separation of powers and impermissibly arrogates to the Executive power that is reserved to Congress. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT II Violation of the Administrative Procedure Act
Ultra Vires Conduct 107. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 108. Under the Administrative Procedure Act (“APA”), a court must set “aside agency action that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). DOJ’s imposition of the three conditions on the Byrne JAG award are such agency action. 109. DOJ may only exercise authority conferred by statute. See City of Arlington, 569 U.S. at 297.
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110. The Byrne JAG statute does not authorize the Attorney General to impose conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 888 F.3d at 283.
111. DOJ also lacks statutory authority to condition Byrne JAG funds on compliance with Section 1373. The Byrne JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass Section 1373. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. Section 1373 does not regulate grantees as grantees nor does it mention federal grants or funds.
112. Congress has repeatedly considered and rejected legislation that would withhold grant funding as a penalty for noncooperation with federal immigration law. 32 Courts should look skeptically on executive action where Congress declined to enact legislation that would have granted the same or substantially similar authority to the executive branch. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000).
113. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General lacks authority to impose the notice, access, and Section 1373 conditions on FY Byrne JAG funds and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
32 See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2016); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3 (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814 114th Cong. § 2 (2015); Financial Services and General Government Appropriations Act, FY2017, H.R. 5485, 114th Cong., § 1217 (2016); see also H.R. 3355, 103d Cong. § 5119 (Nov. 19, 1993) (Senate version of Violent Crime Control and Law Enforcement Act, which would have authorized DOJ to withhold grant funding if the jurisdiction did not cooperate with the Immigration and Naturalization Service).
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COUNT III Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law 114. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 115. Under the APA, a court must set “aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 116. The notice, access, and Section 1373 conditions are invalid under 34 U.S.C. § 10228(a), which prohibits Executive Branch officials from using law-enforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency. 117. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General is without authority to impose the notice, access, and Section 1373 conditions on FY Byrne JAG funds and, in doing so, has acted contrary to law under the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT IV Violation of the Administrative Procedure Act
Arbitrary and Capricious Agency Action 118. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 119. Under the APA, a court must set “aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706(2)(A)—for example, because the agency has failed to consider relevant evidence or “articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 120. An agency’s departure from prior practice can also serve as a basis for finding an agency’s interpretation to be arbitrary and capricious if the change in policy constitutes an
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“unexplained inconsistency.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
121. DOJ departed from more than a decade of past practice when it imposed the immigration-related conditions, yet provided almost no explanation for its decision. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (“the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy”). DOJ has never before sought to impose notice and access conditions on grantees, nor has it ever “sought to enforce [Section 1373] against a state or local government.”33
122. DOJ has never previously determined that Section 1373 is an “applicable Federal law” for the purposes of the Byrne JAG program.
123. Despite DOJ’s shift in policy, it has provided virtually no explanation for its decisions. It released no reports, studies or analysis in connection with its July 25, 2017 announcement of the immigration-related grant conditions, nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.
124. In addition, DOJ “relied on factors which Congress has not intended it to consider,” State Farm, 463 U.S. at 43, by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(6).
125. DOJ also “entirely failed to consider an important aspect of the problem” by failing to recognize how Section 1373 interferes with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
33 Elizabeth M. McCormick, Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform, 20 Lewis & Clark L. Rev. 165, 170 (2016).
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126. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the immigration-related conditions violate the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT V Tenth Amendment: Commandeering 127. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 128. The Tenth Amendment prohibits the federal government from “requir[ing] States and localities “to govern according to Congress’ instructions,” New York v. United States, 505 U.S. 144, 162 (1992), or “command[ing] the States’ officers … to administer or enforce a federal regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997). 129. Section 1373 violates the Tenth Amendment because it “unequivocally dictates what a state legislature may and may not do.” Murphy, 138 S. Ct. at 1476. See City of Philadelphia, --- F. Supp. 3d. ---, 2018 WL 2725503, at *33. 130. Because Section 1373 violates the Tenth Amendment, DOJ cannot require jurisdictions to comply with that statute as a condition of receiving Byrne JAG funds. See South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). 131. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Section 1373 condition violates the Tenth Amendment. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
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Case 1:18-cv-06471-ER Document 1 Filed 07/18/18 Page 33 of 35 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray this Court: (a) Declare that the three conditions for the FY 2017 Byrne JAG program are unlawful; (b) Enjoin Defendants from enforcing the three conditions for the FY 2017 Byrne JAG program on any jurisdiction and retain jurisdiction to monitor DOJ’s compliance with this Court’s judgment; (c) Issue a writ of mandamus compelling Defendants to immediately send a FY 2017 Byrne JAG award letter without the three immigration-related conditions to the States and their localities; (d) Award the States their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and (e) Grant other such relief as this Court may deem proper.
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Dated: July 18, 2018
Anisha S. Dasgupta, Deputy Solicitor General Caroline A. Olsen,† Assistant Solicitor General Eric R. Haren, Special Counsel & Senior Advisor
Of Counsel
GEORGE JEPSEN Attorney General State of Connecticut
By: /s/ Mark F. Kohler Mark F. Kohler,**Assistant Attorney General Michael Skold,**Assistant Attorney General 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 Mark.Kohler@ct.gov Michael.Skold@ct.gov Phone: (860) 808-5020

Respectfully submitted,
BARBARA D. UNDERWOOD Attorney General State of New York
By: /s/ Lourdes M. Rosado Lourdes M. Rosado,† Bureau Chief Jessica Attie,† Special Counsel Lilia Toson,† Assistant Attorney General† Nancy Trasande,† Assistant Attorney General Conor Duffy,* Assistant Attorney General Civil Rights Bureau 28 Liberty St., 20th Floor New York, NY 10005 Lourdes.Rosado@ag.ny.gov Jessica.Attie@ag.ny.gov Lilia.Toson@ag.ny.gov Nancy.Trasande@ag.ny.gov Conor.Duffy@ag.ny.gov Phone: (212) 416-6438
MAURA HEALEY Attorney General Commonwealth of Massachusetts
By: /s/Jonathan Miller Jonathan Miller,† Chief, Public Protection and Advocacy Bureau Genevieve C. Nadeau,† Chief, Civil Rights Division One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Genevieve.Nadeau@state.ma.us Phone: (617) 727-2200

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GURBIR S. GREWAL Attorney General State of New Jersey
By: /s/ Rachel Wainer Apter Rachel Wainer Apter,** Assistant Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor Trenton, NJ 08625-0116 Phone: (609) 376-2702 Rachel.Apter@njoag.gov
ROBERT W. FERGUSON Attorney General State of Washington
By: /s/ Luke Eaton Luke Eaton** Assistant Attorney General P.O. Box 40100 Olympia, WA 98504-0100 Phone: (360) 753-6200 LukeE1@atg.wa.gov

MARK R. HERRING Attorney General Commonwealth of Virginia
By: /s/ Victoria Pearson Victoria Pearson,** Deputy Attorney General 202 North 9th Street Richmond, VA 23219 Phone: (804) 786-4319 VPearson@oag.state.va.us

†Admitted in the S.D.N.Y. * S.D.N.Y. admission application forthcoming **Pro hac vice motion forthcoming

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 Case 1:18-cv-06471-ER Document 32 Filed 08/06/18 Page 1 of 44

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATES OF NEW YORK, CONNECTICUT, NEW JERSEY, RHODE ISLAND and WASHINGTON, and COMMONWEALTHS OF MASSACHUSETTS and VIRGINIA,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE; and JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,
Defendants.

18-CV-06471 (ER) (SDA)
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. In our federal system, States have primary responsibility for the design of law enforcement policies to keep our communities safe and promote trust between law enforcement agencies and the residents they serve. The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program is a mandatory formula grant that Congress created to provide States with a reliable source of funding to promote public safety while maximizing their discretion to tailor their law enforcement efforts to local needs. Congress has appropriated hundreds of millions of dollars in annual grant funds to that end. Contrary to this congressional intent, however, the United States Department of Justice (“DOJ”) has now decided to coerce States and localities into enforcing the federal government’s civil immigration priorities by conditioning Byrne JAG funding on compliance with immigration-related conditions that have nothing to do with the program’s purpose. Plaintiffs—the States of New York, Connecticut, New Jersey, Rhode Island,
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and Washington and the Commonwealths of Massachusetts and Virginia (“the States”)—challenge these unconstitutional and illegal conditions, and seek declaratory and injunctive relief to protect their ability to pursue their own law enforcement prerogatives in the manner that best achieves the safety and security of their communities.
2. The Byrne JAG program is the primary source of federal criminal justice funding for States and localities and is designed to “give state and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). Byrne JAG funds have been used to support a diverse array of programs tailored to local law enforcement needs, including initiatives to combat gun violence, reduce violent crime, provide substance abuse services, support diversion and re-entry programs, improve criminal records systems, fight organized crime, prevent sexual abuse, and fund domestic violence legal advocacy.
3. On July 25, 2017, DOJ announced that it was imposing three immigration-related conditions on Fiscal Year (“FY”) 2017 Byrne JAG funds. The conditions require States and localities to (1) provide access to their correctional facilities for federal immigration enforcement agents (the “access condition”); (2) provide advance notice—i.e., as early as practicable upon request—to federal immigration authorities before an individual’s scheduled release from custody (the “notice condition”); and (3) accept various conditions relating to 8 U.S.C. § 1373, which prohibits States and localities from restricting their officials from communicating with federal immigration authorities “regarding the citizenship or immigration status, lawful or unlawful, of any individual” (collectively, the “Section 1373 conditions”). In addition, States are required to monitor their subgrantees to ensure their compliance with the notice and access conditions, and report to DOJ if they believe that a subgrantee has violated Section 1373.
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4. On July 20, 2018, DOJ released the FY 2018 Byrne JAG award solicitation (the “FY 2018 State Solicitation”). In the FY 2018 State Solicitation, DOJ seeks to impose new immigration-related conditions in addition to those that DOJ imposed on FY 2017 grantees. Any recipient that accepts the FY 2018 award will also need to certify that it does not or will not: violate 8 U.S.C. § 1644, another federal statute prohibiting restrictions on sharing information about an individual’s immigration status with federal authorities; violate, aid or abet violation of 8 U.S.C. § 1324(a), which prohibits the knowing or reckless concealment or harboring of aliens; impede federal authorities in their arrest or removal of aliens as authorized by 8 U.S.C. §§ 1226(a) and (c), and 8 U.S.C. § 1231(a)(4); impede federal immigration agents in their interrogation of individuals as authorized by 8 U.S.C. § 1357(a)(1); and impede reporting by the Attorney General of the United States of the number of individuals without lawful status incarcerated in Federal and State prisons for having committed felonies and all efforts to ensure their prompt removal pursuant to 8 U.S.C. §§ 1366(1) and (3). See FY 2018 State Solicitation at 37, 40-45.
5. DOJ’s decision to impose these sweeping conditions on Byrne JAG grantees represents an unlawful, ultra vires attempt to force States and localities to forsake their own policy judgments and aid in federal civil immigration enforcement. Nothing in the Byrne JAG statute “grant[s] the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for their failure to comply with those conditions.” City of Chicago v. Sessions, 888 F.3d 272, 283 (7th Cir. 2018).
6. DOJ has thus forced the States into an untenable position: accept unlawful and unconstitutional conditions that diminish our sovereign ability to set our own law enforcement
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priorities and protect our communities, or forfeit Byrne JAG funding, thus undermining the vital programs that such funding supports.
7. Accordingly, the States file this action seeking a declaratory judgment that the immigration-related conditions DOJ seeks to impose on both FY 2017 and FY 2018 Byrne JAG funds are unlawful, and a permanent injunction enjoining DOJ from imposing these conditions on any Byrne JAG applicant in order to receive the funds.
JURISDICTION AND VENUE 8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). Jurisdiction is also proper under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702. 9. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. The State of New York is a resident of this district, and a substantial part of the events or omissions giving rise to this Complaint occurred and continue to occur within the Southern District of New York.
PARTIES 10. Plaintiff the State of New York, represented by and through its Attorney General, Barbara D. Underwood, is a sovereign state in the United States of America. The Attorney General is New York State’s chief law enforcement officer, and is authorized to pursue this action pursuant to N.Y. Executive Law § 63. 11. Plaintiff the State of Connecticut, represented by and through its Attorney General, George Jepsen, is a sovereign state in the United States of America. 12. Plaintiff the Commonwealth of Massachusetts is a sovereign state in the United States of America. Massachusetts is represented by Attorney General Maura Healey, who is the
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chief law enforcement officer of Massachusetts. The Massachusetts Executive Office of Public Safety and Security (“EOPSS”) is the state agency responsible for applying for, obtaining, and disbursing funds to subgrantees under the Byrne-JAG program.
13. Plaintiff the State of New Jersey, represented by and through its Attorney General, Gurbir S. Grewal, is a sovereign state in the United States of America. As the State’s Attorney General, Grewal is the head of the New Jersey Department of Law and Public Safety, N.J. Stat. Ann. § 52:17B-2. The mission of the Department of Law and Public Safety is to protect the safety, security, and quality of life of the people of New Jersey through an integrated and coordinated structure of law enforcement and regulatory agencies. The Department of Law and Public Safety is also the agency responsible for applying for, obtaining, and disbursing funds to subgrantees under Byrne JAG.
14. Plaintiff the State of Rhode Island, represented by and through its Attorney General, Peter F. Kilmartin, is a sovereign state in the United States of America.
15. Plaintiff the Commonwealth of Virginia, represented by and through its Attorney General, Mark Herring, is a sovereign state in the United States of America.
16. Plaintiff the State of Washington, represented by and through its Attorney General, Robert W. Ferguson, is a sovereign state in the United States of America. The Washington State Attorney General is the chief legal advisor to the State. The Attorney General’s powers and duties include acting in federal court on matters of public concern.
17. The States are aggrieved by Defendants’ actions and have standing to bring this action.
18. Defendant United States Department of Justice (“DOJ”) is an agency of the United States government and has responsibility for implementing the Byrne JAG program.
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19. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States and is the federal official in charge of the U.S. Department of Justice. The Attorney General is sued in his official capacity.
ALLEGATIONS I. The Byrne JAG Program
20. The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197, which created the first block grants for States and localities to use for law enforcement and criminal justice programs.1 Recognizing that “crime is essentially a local problem that must be dealt with by State and local governments,” 82 Stat. at 197, Congress designed the grant to provide a reliable funding stream that States and localities could use in accordance with State and local law enforcement policies.2
21. To ensure federal deference to local priorities, the 1968 Act prohibited federal agencies and executive branch officials from using law enforcement grants to “exercise any direction, supervision, or control over any police force or any other law enforcement agency of any State or any political subdivision thereof.” Id. § 518(a), 82 Stat. at 208. Although Congress has repeatedly modified the structure and terms of the law enforcement grants authorized under Title I of the 1968 Act, the prohibition originally set forth in § 518 of the 1968 Act remains in
1 See Justice System Improvement Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167, 1179 (amending Title I of the 1968 Act and reauthorizing law enforcement block grants to States and local governments); Justice Assistance Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2077-85 (same); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, pt. E, 102 Stat. 4181, 4329 (amending Title I of the 1968 Act and creating a formula law-enforcement grant); Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006) (amending Title I of the 1968 Act and creating the modern Byrne JAG program). 2 See, e.g., S. Rep. No. 90-1097, at 2 (1968) (stating that Congress sought to encourage States and localities to adopt programs “based upon their evaluation of State and local problems of law enforcement”); see also Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (reviewing the legislative history of the 1968 Act and concluding that “[t]he dominant concern of Congress apparently was to guard against any tendency towards federalization of local police and law enforcement agencies”).
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effect with virtually no modification, and is now codified in the same chapter of the U.S. Code as Byrne JAG. See 34 U.S.C. § 10228(a). The full text of Section 10228(a) provides: “Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” Id.
22. Congress codified the modern Byrne JAG program in 2006.3 34 U.S.C. §§ 10151– 58. The Byrne JAG program is administered by DOJ through its Office of Justice Programs. Like its predecessors, Byrne JAG aims to “give state and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). To that end, the Byrne JAG statute gives recipients substantial discretion to use funds for eight “broad purposes,” id., including law enforcement, crime prevention and education, and drug treatment, 34 U.S.C. § 10152(a)(1).
23. DOJ is required by law to issue grants “in accordance with the formula” set forth in the Byrne JAG statute. Id. Specifically, “[o]f the total amount appropriated” by Congress, the U.S. Attorney General “shall, except as provided in paragraph (2), allocate” fifty percent of the funds based on each State’s population and fifty percent based on each State’s crime rate. Id. § 10156(a)(1). The exception in paragraph (2) provides that each State must receive at least onequarter of one percent of the funds appropriated by Congress for a given year, regardless of what the formula would otherwise dictate. Id. § 10156(a)(2).
3 The program is named after a former New York City police officer who was killed in the line of duty. See About Officer Byrne, https://goo.gl/pLm8JM. Congress appropriated for the program—which consolidated the existing Byrne formula program with another law enforcement block grant program—in an appropriations act passed on December 8, 2004. See P.L. 108-447, 118 Stat. 2809, 2863 (Dec. 8, 2004). Thus, although the program was not codified until 2006, some states began receiving awards under the program in FY 2005.
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24. Of the money allocated to each State, sixty percent of the funding “shall be for direct grants to States,” id. § 10156(b)(1), and forty percent “shall be for grants” directly to localities (compared within a State based on crime rate), id. § 10156(b)(2), (d). Each State is required to allocate a portion of its award to localities within the State. See id., § 10156(c)(2). Thus, some localities are both direct grant recipients and subgrantees of the States.
25. Unlike discretionary grant programs, which agencies award on a competitive basis, “formula grants … are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d, 1084 1088 (9th Cir. 1989). Thus, if a grantee satisfies the statutory requirements, it is entitled to receive what the formula dictates.
26. Under the Byrne JAG statute, States and local governments are entitled to their share of the formula allocation as long as they use the funds to further one or more of the eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H), and their applications contain a series of statutorily prescribed certifications and attestations, see id. § 10153(a).
27. States and localities are required to submit an application to receive Byrne JAG funds each fiscal year. See 34 U.S.C. § 10153(a). The application must include the following items, among others: a certification that program funds will not be used to supplant state or local funds, id. § 10153(a)(1); an assurance that the application was made available for comment by the public, and by neighborhood or community-based organizations, id. § 10153(a)(3); an assurance that the applicant will “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” id. § 10153(a)(4); and a certification that programs to be funded meet the requirements of the Byrne JAG statute, that all the information in the application is correct, that there has been appropriate coordination with affected agencies,
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and that “the applicant will comply with all provisions of this part and all other applicable Federal laws,” id. § 10153(a)(5).
28. The Byrne JAG statute does not include any provision expressly authorizing DOJ to impose conditions on Byrne JAG funding. II. The States’ Use of Byrne JAG Funding
29. For nearly fifty years, the States and local subgrantees have used grant funds under Byrne JAG and its predecessor grant programs to support a broad array of critical law enforcement programs tailored to local needs.
30. The States have received Byrne JAG awards every year since the program was created.
A. New York 31. The State of New York has used Byrne JAG funding for a variety of purposes, including to support a multi-county program to combat gun violence, improve criminal records systems, enhance the services of forensic laboratories, and support prosecution and defense services.4 32. New York’s subgrantees also have used Byrne JAG funding for varied and successful programs. For example, the Buffalo Veterans Treatment Court used a Byrne JAG award of $86,147 to divert 100 veterans from the prison system and provide them with “health, education, and employment resources and services which have been critical to the ‘re-adjustment challenge’ these combat veterans have faced upon returning home.”5 The Council of Thought and Action
4 See New York State’s Application for Byrne JAG Program Funds—FFY 2016, at 4-9 (June 30, 2016), at https://goo.gl/3WsuWr. 5 Success Story Details: Buffalo Veterans Treatment Court, U.S. Department of Justice Bureau of Justice Assistance, https://www.bja.gov/SuccessStoryDetail.aspx?ssid=11.
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Youth in Suffolk County received $10,000 in Byrne JAG funding to support the initiative’s outreach workers, who identify and engage at-risk youth and young adults between the ages of 13 and 24 years, assess their needs, and provide them with guidance and mentoring.6
33. On June 26, 2018, New York was notified that it received a Byrne JAG award for FY 2017 in the amount of $8,879,161.7
34. For the FY 2017 grant cycle, New York plans to use its Byrne JAG funding to support a number of criminal justice, law enforcement, and drug treatment priorities. In particular, New York plans to use FY 2017 Byrne JAG funding to:
a. cover 50% of the cost of the purchase and installation of Livescan fingerprint technology equipment at local law enforcement agencies to facilitate the timely receipt of fingerprint search results when an individual is arrested;
b. expand a demonstration project that uses Byrne JAG to fund staff positions at police and prosecutorial agencies that are focused on investigating and prosecuting nonfatal shooting cases;
c. provide annual subgrants to district attorney and public defender offices in numerous counties to enhance the quality and effectiveness of prosecution and defense services, including efforts to combat illegal gun trafficking and improve defense services for individuals processed through specialty courts, such as domestic violence courts, veterans courts, and drug courts;
d. support the creation of a New York State Criminal Justice Research Consortium to
6 Success Story Details: Council of Thought and Action (COTA) Youth, U.S. Department of Justice Bureau of Justice Assistance, https://www.bja.gov/SuccessStoryDetail.aspx?ssid=97. 7 See N.Y. FY 2017 Byrne JAG Award, Ex. A.
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connect criminal justice practitioners to academic researchers to expand the use of evidence-based practices; e. support New York’s SNUG8 street outreach program, a gun violence prevention initiative active in eleven jurisdictions throughout the State that have had elevated levels of shooting incidents; f. partially or fully fund twenty-nine staff positions at the New York State Office of Information Technology dedicated to maintaining critical public information technology systems and platforms such as the State’s fingerprint identification system and criminal history database; g. purchase and install video equipment for recording custodial interrogations at local law enforcement agencies; and h. cover roughly one-half of the costs of approximately thirty crime analyst positions at four Crime Analysis Centers that serve the Buffalo, Rochester, Syracuse, and Albany regions. 35. In addition to these planned programs, New York plans to provide FY 2017 Byrne JAG funding to subgrantees to support a variety of criminal justice and drug treatment programs. A broad range of local and State government subgrantees benefit from these funds, including police agencies, prosecutors, and social services agencies. 36. New York’s 2017-18 enacted state budget included $10 million in appropriation authority to support state and local projects funded from the state’s FY2017 Byrne JAG award. These funds were reappropriated in the 2018-19 enacted state budget.
8“Guns” spelled backwards.
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37. New York’s deadline to accept the Byrne JAG award is August 10, 2018.9 B. Connecticut 38. Connecticut typically distributes most of its funds to its subgrantees, including various state agencies and local jurisdictions. Most of the state-level funds are committed to state agency projects focused on enhancing components of the criminal justice system, while most subgrants to local jurisdictions are dedicated to local law enforcement functions, with a priority given to projects focusing on narcotics, violent crime reduction, technology improvements and equipment. 39. On June 26, 2018, Connecticut was notified that it received a Byrne JAG award for FY 2017 in the amount of $1,711,049.10 40. If Connecticut accepts the FY 2017 JAG grant, it intends to disburse most of the money to various state agencies and local jurisdictions to assist in their law enforcement and criminal justice programs, including funding for stipends for local police to ensure their continued participation in and support of Connecticut’s Statewide Narcotic Task Force, substance abuse treatment services and other re-entry services in Connecticut prisons and communities, and the State’s opioid intervention project for local police departments, the purpose of which is to reduce opioid-related deaths and reduce opioid-related crime and incarceration. 41. Connecticut’s deadline to accept the Byrne JAG award is August 10, 2018. C. Massachusetts 42. Massachusetts has spent or will spend funds received from its Byrne JAG award to create or support various law enforcement programs and initiatives, such as programs that provide
9 The parties have entered into a stipulation (ECF 29) extending the Byrne JAG award acceptance deadline during the pendency of this litigation pursuant to the terms set forth therein. 10 See Conn. FY 2017 Byrne JAG Award, Ex. B.
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wrap-around services to high-risk youth, including through faith-based and community-based efforts; programs aimed at reducing heroin and other opioid use through prevention, intervention, treatment, interdiction, and system readiness; collaborative projects that promote efforts of local agencies to provide and ensure comprehensive reintegration programs for juvenile and adult offenders reentering the community; and projects that promote the collaboration of law enforcement, the courts, and local victim service agencies in responding to domestic violence and sexual assault incidents.
43. The various subgrantees of EOPSS have spent or will spend funds received from Massachusetts’ Byrne JAG award to create or support various law enforcement programs and initiatives, such as hiring case managers with expertise in substance abuse and counseling to serve as a liaison between law enforcement and the treatment centers where individuals are referred for care; increasing community outreach in high-risk areas; implementing training and early intervention tools for at-risk youth; and implementing data and analysis to drive strategies to reduce crime and improve operational effectiveness.
44. On June 26, 2018, Massachusetts was notified that it received a Byrne JAG award for FY 2017 in the amount of $3,453,006.11
45. Massachusetts has planned on using its FY 2017 Byrne JAG award to fund programs focused on reducing gun, gang, and youth violence; evidence-based reentry programs to reduce recidivism; programs targeting domestic violence and sexual assault offenders; efforts geared toward combating heroin, opioids, and other illegal drugs; and collaborative prosecution and prevention programs.
46. Massachusetts’ deadline to accept the Byrne JAG award for FY 2017 is August 10,
11 See Mass. FY 2017 Byrne JAG Award, Ex. C.
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2018. D. New Jersey 47. New Jersey has spent Byrne JAG funds that it received in FY 2014 through 2016
to create or support various law enforcement programs and initiatives, such as the State’s MultiJurisdictional Gangs, Organized Crime and Narcotics Task Force, the Statewide Gun Violence Reduction Initiative, the Atlantic City Organized Crime Task Force, the Prosecutor Supervision Training Initiative, building a password recovery server that helps investigators access devices that may contain evidence of a crime, and supporting the integration and enhancement of New Jersey’s statewide criminal justice information sharing networks.
48. Subgrantees of the New Jersey Department of Law and Public Safety spent Byrne JAG funds that they received in FY 2014 through 2016 to create or support various law enforcement programs, such as the Body-Worn Cameras Initiative which helps municipal law enforcement agencies acquire body-worn cameras, and county Multi-Jurisdictional Gangs, Guns, and Narcotics Task Forces. In addition, past Byrne JAG awards have funded the implementation of Megan’s Law requirements by county prosecutor’s offices, a study analyzing the effectiveness of New Jersey’s inmate Re-entry Initiatives, and updating inmate videoconferencing equipment.
49. The New Jersey legislature anticipated receiving, and accounted for, the Byrne JAG award for FY 2017 as a “federal resource” when it passed the State’s most recent appropriations act.
50. On June 26, 2018, New Jersey was notified that it received a Byrne JAG award for FY 2017 in the amount of $4,047,274.12
12 See N.J. FY 2017 Byrne JAG Award, Ex. D.
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51. The Division of Criminal Justice of the New Jersey Department of Law and Public Safety has planned on using the FY 2017 grant to fund the following: the Multi-Jurisdictional Gangs, Organized Crime and Narcotics Task Force, which is responsible for investigating and prosecuting members of criminal gang organizations, gun traffickers, and gun trafficking organizations whose operations transcend county jurisdictions or operate across state lines into, or out of, New Jersey; the Division’s Megan’s Law Coordinator, who is responsible for the coordination and oversight of all of the agencies responsible for implementing Megan’s Law; and the Prosecutor Supervision Training Initiative, which ensures the availability of cost-free, highquality training to State, county, and municipal law enforcement officers engaged in the investigation of gangs, drugs, and related violent criminal activity.
52. The Division of State Police of New Jersey’s Department of Law and Public Safety plans to use the FY 2017 monies to fund the Organized Crime, Gangs, and Narcotics Task Force, which is responsible for spearheading New Jersey’s ongoing war on drugs and gangs with strategic initiatives derived from intelligence-led policing efforts. The Division also plans to fund the State Police’s Ballistics Unit, which routinely serves agencies throughout the State by providing expert advice on firearms-related evidence, preparing reports, offering courtroom testimony, providing lectures, and entering and correlating images in the National Integrated Ballistic Information Network.
53. New Jersey’s deadline to accept the Byrne JAG award is August 10, 2018. D. Rhode Island 54. Rhode Island distributes funds it receives from the Byrne JAG program to various state agencies and local entities. These funds support law enforcement-related activities by, among other entities, the Rhode Island State Police, the Rhode Island Department of Corrections, as well
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as local municipal governments. Past funding has supported victim services, family services, and juvenile-at-risk programs.
55. On June 26, 2018, Rhode Island was notified that it received a Byrne JAG award for FY 2017 in the amount of $767,114.00.13
56. If Rhode Island accepts the FY 2017 Byrne JAG award, it intends to disburse the money to various state agencies and local municipal entities to aid in their law enforcement and criminal justice programs. Recipients will include the Rhode Island Public Defenders Office, to represent indigent defendants; the Domestic Violence Unit, to augment other federal and state funds to partially support efforts to enter data from police arrest report forms and disseminate various domestic violence/child molestation reports to state, municipal, and private non-profit victim service agencies; the Rhode Island Attorney General, to provide a prosecutor for cases accepted into the Drug Court program; and the Department of Children, Youth and Families, to continue job training for at-risk youths.
57. Rhode Island’s deadline to accept the Byrne JAG award is August 10, 2018. D. Virginia 58. The Commonwealth of Virginia has used Byrne JAG funding to cover the administrative costs that support the salaries of critical staff in various divisions within the Virginia Department of Criminal Justice Services (VA-DCJS), including its Division of Law Enforcement, and to supplement essential staffing needs within the VA-DCJS Director’s Criminal Justice Research Center. 59. In recent years, Virginia’s subgrantees have used Byrne JAG funding to support various local law enforcement programs and initiatives, including crime reduction and prevention
13 See R.I. FY 2017 Byrne JAG Award, Ex. E.
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efforts, initiatives to upgrade law enforcement equipment, initiatives to support specialized law enforcement training, and the use of body cameras and life-saving naloxone.
60. On June 26, 2018, DOJ notified Virginia that it had been awarded $3,353,534 in Byrne JAG monies for FY 2017.14
61. Virginia intends to use its FY 2017 Byrne JAG funding to make subgrants to localities and to continue funding to various law enforcement agencies and criminal justice partners. Virginia also plans to use Byrne JAG funds to continue to support the critical staffing and administrative needs at the VA-DCJS.
62. Virginia, through its state budget process, has also set aside funding to support longterm and ongoing law enforcement projects in anticipation of receiving FY 2017 Byrne JAG monies.
63. Virginia’s deadline for accepting its FY 2017 Byrne JAG allocation is August 10, 2018.
E. Washington 64. Washington has used Byrne JAG funding to support a number of criminal justice and law enforcement programs, including narcotics task forces, drug courts, and youth intervention programs. Washington also has used this funding to support high-impact offender prosecution and tribal law enforcement efforts, and to improve its state criminal history records. In addition, Byrne JAG funding has supported domestic violence legal advocacy and efforts to combat sexual abuse. Funds also have been directed to mitigate the gang threat in prisons and to support the Governor’s
14 See Va. FY 2017 Byrne JAG Award, Ex. F.
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Council on Substance Abuse. 65. Washington’s subgrantees have used Byrne JAG funding for varied law
enforcement purposes, including training, staffing, travel, equipment, professional services, and facilities, among others. These funds have been vital in Washington’s attempts to combat criminal organizations.
66. On June 26, 2018, DOJ notified Washington that it had been awarded $3,277,891 in Byrne JAG monies for FY 2017.15
67. Washington intends to use its FY 2017 Byrne JAG award to support multijurisdictional drug and gang task forces.
68. The chief law enforcement agencies of Washington State are the county sheriffs. Multi-jurisdictional task forces are an important tool in combating drug trafficking and gang violence. Drug trafficking, and the violence associated with this activity, is nearly impossible to address on a jurisdiction-by-jurisdiction basis, as drug trafficking organizations often operate at a level above the capacity of most local jurisdictions to adequately investigate and prosecute. These criminal organizations operate across city, county, and state boundaries, and therefore law enforcement cannot adequately investigate, disrupt, or dismantle these organizations when only a portion of their operation is targeted by local law enforcement.
69. Funding from the Byrne JAG program both encourages local agencies to participate in regional task forces, and helps local law enforcement agencies to offset costs associated with combatting drug trafficking and gang violence.
70. Washington has budgeted in anticipation of its receipt of the FY 2017 Byrne JAG award. Because these funds are distributed statewide, any delay or failure in receiving grant
15 See Wash. FY 2017 Byrne JAG Award, Ex. G.
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funding will negatively impact both Washington State as well as the numerous cities and counties in Washington that depend on this grant funding to combat crime and maintain public safety.
71. Washington’s deadline for accepting its Byrne JAG allocation is August 10, 2018. III. DOJ’s FY 2017 Immigration-Related Byrne JAG Conditions
72. On January 25, 2017, President Trump issued Executive Order 13768. Section 9(a) of the order threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” That section was permanently enjoined by a federal district court because it violated numerous provisions of the United States Constitution.16
73. DOJ subsequently sought to achieve a similar goal by imposing three immigrationrelated conditions on FY 2017 Byrne JAG funds.17 On July 25, 2017, DOJ announced that it would impose these conditions and provided a one-page “Backgrounder” and a press release, neither of which explained how or why DOJ decided to impose these immigration-related conditions, how the conditions would advance the interests of the Byrne JAG program, or what alternatives DOJ had considered.
74. On August 24, 2017, one day before State applications for FY 2017 Byrne JAG funds were due, DOJ published a sample final award document containing the three immigrationrelated conditions and stated that identical conditions would be imposed on other applicants.
75. The access condition requires all State and local grantees and State subgrantees to have a statute, rule, regulation, policy or practice designed to ensure that, upon request, federal
16 County of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (permanent injunction). 17 See Press Release, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Programs (July 25, 2017), available at https://goo.gl/VH5wGU; Backgrounder on Grant Requirements (July 25, 2017), available at https://goo.gl/ZLgXMC; Byrne JAG FY2017 State Solicitation, available at https://www.bja.gov/funding/JAGstate17.pdf
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agents may access any state or state-contracted or local or local-contracted correctional facility to question suspected aliens about their right to be, or remain, in the United States.
76. The notice condition requires all State and local grantees and State subgrantees to have a statute, rule, regulation, policy or practice designed to ensure that State and local officers will respond as soon as practicable to any formal written request from the Department of Homeland Security to a correctional facility seeking advance notice of a particular alien’s scheduled release date and time.
77. In addition, States are required to monitor all of their subgrantees to ensure they are complying with the notice and access conditions.
78. The States also must accept various conditions related to 8 U.S.C. § 1373, which prohibits States and localities from restricting their officials from communicating with federal immigration authorities “regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).18 The Section 1373 conditions will require States to:
• Comply with Section 1373 throughout the duration of the award; • Diligently monitor the compliance of all subgrantees with Section 1373; and • Notify DOJ in writing if the State becomes aware of “credible evidence” that any
subgrantee has violated Section 1373. 79. DOJ also requires three certifications from the States. The first, which must be by the State’s Chief Executive, i.e., the Governor, attests to the State’s compliance with Section 1373 and the other grant conditions. The second, which must be by the State’s Chief Legal Officer,
18 See also 8 U.S.C. § 1373(b) (“Notwithstanding any other provision of Federal, state, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”).
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certifies the State’s compliance with Section 1373 and that the Legal Officer understands that subgrantees must also comply with Section 1373. The third certification requires the State employee who signs the grant award to certify the State’s compliance with all other grant conditions. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies.
80. A number of jurisdictions have brought lawsuits challenging DOJ’s legal authority to impose one or more of the immigration-related conditions on Byrne JAG funding. All courts to have considered the question to date have held that DOJ likely or definitely lacks authority to impose these conditions.
81. The City of Chicago sued on August 7, 2017, challenging the notice and access conditions and seeking a declaration that it complies with Section 1373.19 On September 15, 2017, a federal court in Chicago issued a nationwide preliminary injunction that prohibited DOJ from imposing the notice and access conditions on any Byrne JAG applicant.20 Rather than disburse the Byrne JAG awards without these conditions, DOJ instead decided to effectively suspend the program by withholding all further FY 2017 grant awards until the injunction was narrowed or there was a final decision on the merits in the Chicago action.
82. On April 19, 2018, the Seventh Circuit unanimously affirmed the Chicago district court’s nationwide preliminary injunction on the notice and access conditions and its ruling that DOJ likely lacks authority to impose those two conditions.21
19 Compl., City of Chicago v. Sessions, No. 17-cv-05720, 264 F. Supp. 3d 933 (N.D. Ill. Aug. 7, 2017), ECF No. 1. 20 City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017). 21 City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018).
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83. On June 26, 2018, the Seventh Circuit issued a partial stayed of the nationwide
preliminary injunction previously issued by the district court in Chicago, limiting the effect of the
injunction to Chicago. The Seventh Circuit also granted en banc review solely on the question of the propriety of the nationwide scope of the injunction.22 The Seventh Circuit will hear argument
en banc in September 2018 on that limited issue. DOJ did not challenge the Seventh Circuit’s
ruling that DOJ likely lacks authority to impose the notice and access conditions.
84. While the Chicago lawsuit was pending in the district court, the State of California
and City of San Francisco filed lawsuits challenging the notice, access, and Section 1373 conditions.23 On March 5, 2018, a California district court denied DOJ’s motion to dismiss both
the California and San Francisco lawsuits, holding that those jurisdictions had stated plausible claims that the challenged conditions were unlawful.24
85. Shortly after the lawsuits in California were filed, the City of Philadelphia filed its own lawsuit.25 On June 6, 2018, the district court in Philadelphia permanently enjoined DOJ from
imposing the three conditions on Philadelphia and ordered DOJ to immediately disburse the Byrne JAG funds to Philadelphia.26
86. On June 26, 2018, just hours after the Seventh Circuit issued its decision limiting
22 City of Chicago v. Sessions, 17-2991 (7th Cir. June 4, 2018), Doc. No. 128 (granting en banc review on scope of preliminary injunction); Order, Chicago v. Sessions, 17-2991 (7th Cir. June 26, 2018), Doc. No. 134 (granting partial stay of injunction as to geographic areas beyond the City of Chicago). 23 Compl., California ex rel. Becerra v. Sessions (“California”), No. 17-cv-4701, (N.D. Cal. Aug. 14, 2017), ECF No. 1; Compl., City of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. Aug. 11, 2017), ECF No. 1. 24 Order Denying Mot. to Dismiss, California, No. 17-cv-4701 (Mar. 5, 2018), ECF No. 2018; Order Denying Mot. to Dismiss, City of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. Mar. 5, 2018), ECF No. 78. The district court denied California’s request for a preliminary injunction enjoining DOJ from enforcing the Section 1373 condition on the State and its subdivisions, finding that the record was insufficient at the motion to dismiss stage to enjoin the Section 1373 condition. See Order Denying Am. Mot. for Prelim. Inj. at 26-27, California, No. 17-cv-4701 (N.D. Cal. Mar. 5, 2018), ECF No. 89. 25 Compl., City of Philadelphia v. Sessions, No. 17-cv-03894, (E.D. Pa. Aug. 30, 2017), ECF No. 1. 26 City of Philadelphia v. Sessions, --- F. Supp. 3d. ---, 2018 WL 2725503, at *40-45 (E.D. Pa. 2018).
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the injunction to Chicago, DOJ issued grant award letters to the States giving the States 45 days to decide whether to accept the awards with the new immigration-related conditions.
87. On July 27, 2018, after those letters were issued and Plaintiff States filed the complaint in this case, the district court in the Chicago lawsuit ruled that DOJ lacked the statutory authority to impose the notice and access conditions, and that Section 1373 is unconstitutional because that statute seeks to commandeer State and local governments in violation of the Tenth Amendment. The district court entered a permanent nationwide injunction barring DOJ’s enforcement of all three conditions, but immediately stayed the injunction to limit its effect to Chicago pending the Seventh Circuit’s en banc consideration of the nationwide scope of the preliminary injunction.27
IV. DOJ’s FY 2018 Immigration-Related Byrne JAG Conditions 88. Two days after the complaint in this action was filed, on July 20, 2018, DOJ
released the FY 2018 State Solicitation, which includes additional immigration-related conditions for FY 2018 Byrne JAG funds on top of those imposed on FY 2017 funding.
89. According to the FY 2018 State Solicitation, when applying for the FY 2018 Byrne JAG funding, each State must answer the following questions:
• Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE?
• Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in question 1?
FY 2018 State Solicitation at 27-28. 90. If the answer to either question is yes, the applicant must provide a copy of each
27 Mem. Opinion & Order, City of Chicago v. Sessions, No. 17 C 5720, 2018 WL 3608564, at *5-11 (N.D. Ill. July 27, 2018).
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law or policy, describe each practice, and explain how the law, policy, or practice complies with
Section 1373. Id. States also must collect this information from all of their subgrantees. Id.
91. The FY 2018 State Solicitation also requires each recipient to certify that it does
not or will not:
• Violate 8 U.S.C. § 1644, which prohibits certain restrictions on sharing information relating to immigration status;
• Violate, “aid or abet any violation of 8 U.S.C. § 1324(a),” which prohibits the knowing or reckless concealment or harboring of aliens;
• “[I]mpede the exercise of the authority of the federal government under 8 U.S.C. § 1226(a) & (c), . . . and 8 U.S.C. § 1231(a)(4),” which grants certain powers concerning the arrest or removal of aliens;
• “[I]mpede the exercise by DHS agents . . . of their authority under 8 U.S.C. § 1357(a)(1) to ‘interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States’”; and
• Impede congressional reporting by the Attorney General of the United States of the number of individuals without lawful status incarcerated in Federal and State prisons for having committed felonies and efforts to ensure their prompt removal pursuant to 8 U.S.C. § 1366(1) and (3).
See FY 2018 State Solicitation at 37, 40-45. 92. At the time of applying for Byrne JAG funding, the State’s Chief Executive, i.e.,
the Governor, must also attest to the State’s compliance with Sections 1373 and 1644, as well with 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1357(a), and 1366(1) & (3).28 The State’s Chief Legal
Officer must separately certify the State’s compliance with the same as well as 8 U.S.C. § 1324(a) at the time of application.29 The State employee who signs the grant award also must certify the
28 Though DOJ requires this and all other immigration-related conditions for FY 2018 Byrne JAG funds to be certified at the time of the application in order to consider a State’s Byrne JAG funding application complete, OJP will not deny an application for FY2018 for failure to submit these certifications by the application deadline; instead, a state will not be able to access the awards until it submits these certfications and assurances. FY 2018 State Solicitation at 1, 27-28, 40-41. 29 FY 2018 State Solicitation at 1, 27, 42-45.
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State’s compliance with all award conditions, including all statutes referenced in the Chief Legal Officer’s certification.30
93. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies.
94. States will be required to obtain from their subgrantees similar certifications. FY 2018 State Solicitation at 24. Those certifications have yet to be released. See https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm (“Forms for completion by applicants are listed below. Associated forms for required certifications from prospective subrecipients also will be posted on this webpage, at or about the time OJP makes awards under the pertinent program.”).
95. DOJ’s position now seems to be that 8 U.S.C. §§ 1226, 1231, 1324, 1357, and 1366 are “applicable laws” within the meaning of the Byrne JAG statute. Moreover, it is using several of these immigration statutes as a vehicle to provide post hoc statutory authority for the notice and access conditions—conditions that every court to date has held DOJ lacks the statutory authority to impose. For example, the FY 2018 State Solicitation suggests that noncompliance with the notice condition would impede the authority of the federal government to arrest, detain, and remove “aliens” under 8 U.S.C. § 1226(a) & (c), and 8 U.S.C. § 1231(a)(4), as well as to report on such actions under 8 U.S.C. § 1366(1) and (3). Likewise, the solicitation suggests that noncompliance with the access condition would impede the authority of the federal government to interrogate those it suspects of being in the country unlawfully pursuant to 8 U.S.C. § 1357(a)(1) or constitute a violation under 8 U.S.C. § 1324(a) for any person harboring or attempting to conceal an alien despite the fact that this statute relies on a definition of person, 8 U.S.C. § 1101(b)(3), that
30 FY 2018 State Solicitation at 35-37.
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does not encompass States or local governments. See FY 2018 State Solicitation at 37. 96. By their terms, none of these statutes applies to state or local government actions. 97. The deadline for submitting an application for Byrne JAG funding for FY 2018 is
August 22, 2018. All Plaintiffs intend to apply for said funds. V. All of the Immigration-Related Conditions Are Unlawful.
98. All of the immigration-related conditions are unlawful for a number of reasons. 99. First, DOJ has no statutory authorization to impose the conditions. An “agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Here, nothing in the statute’s text, structure, purpose, or history suggests that Congress granted DOJ authority to prescribe generally applicable substantive conditions like the immigration-related conditions at issue here. See City of Chicago, 888 F.3d at 285-87; City of Philadelphia, --- F. Supp. 3d ---, 2018 WL 2725503, at *25. 100. The fact that Congress designed Byrne JAG as a formula grant provides further confirmation that DOJ lacks discretion to impose these substantive conditions. Formula grants leave no discretion to the administering agency: if a grantee satisfies the statutory requirements, it is entitled to the grant amount that the formula dictates. See, e.g., City of Los Angeles, 865 F.2d at 1088.31 Accordingly, DOJ’s imposition of the new conditions is ultra vires for purposes of the Administrative Procedure Act. 101. Second, because Congress did not authorize DOJ to impose conditions on Byrne JAG, DOJ’s actions here violate the Separation of Powers between Congress and the Executive. The Executive Branch may not arrogate to itself the powers that the Constitution reserves to Congress, as it has attempted to do here. The Executive has no authority to amend or cancel an
31 See also Paul G. Dembling & Malcolm S. Mason, Essentials of Grant Law Practice § 5.03, 33-35 (1991).
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appropriation that Congress has duly enacted. Nor can executive officials choose to spend less than the full amount of funding that Congress has authorized under a statute.
102. Third, the immigration-related conditions violate 34 U.S.C. § 10228(a), which is codified in the same chapter of the U.S. Code as the Byrne JAG statute and provides that “[n]othing in this title or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” This language has been carried forward in every law enforcement grant since the Omnibus Crime Control and Safe Streets Act of 1968—a predecessor to the Byrne JAG program and the first federal block grant program for State and local law enforcement.32 The legislative history of Section 10228 makes clear that Congress intended to incorporate anti-commandeering principles into the grant context to prevent executive officials from using a grant like Byrne JAG to interfere with state and local law enforcement policy.33
103. All of the immigration-related conditions violate Section 10228(a) because they compel States to act as enforcement arms of federal immigration authorities by, for example, requiring States to monitor and report to DOJ whether all of the States’ subgrantees comply with Section 1373.
104. DOJ’s requirement that States certify compliance with the additional immigration-
32 See Omnibus Crime Control and Safe Street Act of 1968, Pub. L. No. 90-351, § 518(a), 82 Stat. 197, 208 (1968); see generally John K. Hudzik, Federal Aid to Criminal Justice: Rhetoric, Results, Lessons 1-68 (1984) (describing the origins of the Safe Streets Act). 33 See, e.g., Amendments to Title I (LEAA) of the Omnibus Crime Control and Safe Streets Act: Hearing Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. of the Judiciary, 94th Cong. 407-08 (1975) (statement of Richard W. Velde, Administrator of the LEAA) (“It is disturbing that it should even be suggested that LEAA ought to undertake to redirect the efforts of state and local law enforcement agencies . . . . The Congress has continuously emphasized that law enforcement is, and must remain, essentially a state and local responsibility. Section 518(a) of the Safe Streets Act is the embodiment of this appropriate philosophy.”).
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related statutes listed in the FY 2018 State Solicitation particularly runs afoul of Section 10228(a)’s prohibition on law enforcement commandeering because the statutes at issue do not even regulate actions by State or local goverments. Compare 8 U.S.C. § 1373 (prohibiting Federal, State and local government agencies from restricting information-sharing about immigration or citizenship status with federal immigration authorities) with 8 U.S.C. § 1644 (prohibiting State and local government agencies from being restricted in information-sharing about an individual’s immigration status with federal immigration authorities) and 8 U.S.C. § 1226(a) & (c) as well as 8 U.S.C. § 1231(a)(4) (granting certain powers to the Attorney General of the United States with respect to the arrest and detention of aliens) and 8 U.S.C. § 1324(a) (prohibiting any person from the knowing or reckless concealment or harboring of aliens) and 8 U.S.C. § 1357(a)(1) (authorizing federal immigration officers to interrogate any alien or any person believed to be an alien) and 8 U.S.C. § 1366(1) and (3) (requiring the Attorney General of the United States to report, to the Committees on the Judiciary of the House of Representatives and of the Senate, the number of individuals without lawful status incarcerated in Federal and State prisons for having committed felonies and all efforts to ensure their prompt removal). DOJ’s attempt to bootstrap compliance with the notice and access conditions into these statutes similarly violates Section 10228(a)’s anti-commandeering principle.
105. The Section 1373 conditions are invalid because Section 1373 is unconstitutional. See South Dakota v. Dole, 483 U.S. 203, 210-211 (1987) (federal government cannot impose unconstitutional conditions). In Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018), the Supreme Court held that Congress runs afoul of the anti-commandeering principles of the Tenth Amendment when it “unequivocally dictates what a state legislature may and may not do.” Section 1373 violates this rule because it directly prohibits States and localities enacting laws, rules, or
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policies that “prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Nationalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). See, e.g., City of Philadelphia, --- F. Supp. 3d. ---, 2018 WL 2725503, at *32-33 (citing Murphy and holding that 8 U.S.C. § 1373 violates the Tenth Amendment); Mem. Opinion & Order, City of Chicago v. Sessions, No. 17 C 5720, 2018 WL 3608564, at *5-11 (N.D. Ill. July 27, 2018).
106. Just as Section 1373 violates the Tenth Amendment by seeking to unequivocally dictate what the States may and may not do, so too does the newly-added Section 1644 condition, which, like Section 1373, prohibits restrictions on sharing information about an individual’s immigration status with federal authorities. The Tenth Amendment prohibits the federal government from requiring states and localities to govern according to Congress’s instructions and from commanding localities to administer or enforce a federal regulatory program. This anticommandeering principle applies to situations in which Congress compels a state to enact, or prohibits a state from enacting legislation. Murphy, 138 S. Ct. at 1478.
107. Finally, the conditions are arbitrary and capricious because DOJ imposed them without any explanation, reasoning, or opportunity for exchange with state or local governments regarding the likely impact of the conditions on state and local efforts to promote public safety. VI. The States Are Harmed by DOJ’s Imposition of the Immigration-Related Conditions
On Byrne JAG funding. 108. The immigration-related conditions imposed by DOJ upon applicants for FY 2017 and FY 2018 Byrne JAG funding threaten the States and their localities with serious, immediate, and irreparable harm. 109. In our federal system, the States and localities have primary responsibility for the design of law-enforcement policies to keep their residents safe. See, e.g., United States v.
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Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power . . . reposed in the States[] than the suppression of violent crime and vindication of its victims.”).
110. Recognizing that the States possess the primary authority for maintaining public safety, Congress designed the Byrne JAG program to maximize the discretion of States and their localities to decide how to best use these funds to advance their law enforcement priorities and make their communities safer. The immigration-related conditions constrain the very choices that Congress sought to safeguard.
111. DOJ’s actions place the States in an untenable position. If the States do not acquiesce to the conditions, they will forfeit tens of millions of dollars in law enforcement funding, potentially compromising the critical law enforcement and criminal justice programs those funds support.
112. If they accept these conditions, the States will be forced to relinquish sovereign control over state law enforcement officials and state law enforcement policies, including policy choices to allow localities to adopt law enforcement and criminal justice policies based on local needs. Localities that lawfully limited voluntary cooperation with federal immigration officials will now be compelled to adopt policies that undermine their relationships of trust with their immigrant communities, to the detriment of effective crime reporting and overall public safety in the States. Immigrants also may be deterred from seeking primary care and preventative health care services, undermining the public health efforts of States and localities. The trust between immigrants and state and local officials, “once destroyed by the mandated cooperation and communication with the federal immigration authorities, [cannot] easily be restored.” City of Chicago, 888 F.3d at 291.
113. Public safety will be further undermined because States will be unable to issue
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Byrne JAG subgrants to localities that DOJ believes do not comply with one or more of the immigration-related conditions. DOJ has previously sent letters to two major cities in New York State—the City of New York and Albany—alleging that these jurisdictions have laws or policies that violate Section 1373. These cities will be hampered in their ability to promote their law enforcement priorities if New York State is forced to withhold critical Byrne JAG funds from them. And the State itself is injured when its localities are unable to effectively police their communities. As another example, the Washington State Patrol is a subgrantee participant in multijurisdictional drug and gang task forces across Washington State. According to a longstanding federal consent decree, the Washington State Patrol is prohibited from participating in the enforcement of immigration laws. Without a Byrne JAG subgrant, the State Patrol will be hindered in its ability to participate in these critical task forces.
114. DOJ has also sought to require the States to monitor their subgrantees’ compliance with the conditions—a process that will require some States to expend considerable time and money, including building an infrastructure to conduct inspections, review records, and compile and transmit data. And if Defendants disagree with the States’ determination that a subgrantee complies with the conditions, the States could lose other federal grants and face civil or criminal liability.
115. Certifying compliance with Section 1373 is particularly perilous for States given Defendants’ expansive and ever-changing interpretations of that statute’s meaning and application. DOJ has advanced increasingly broad interpretations of what it means to comply with Section 1373. For example, DOJ has suggested that Section 1373 prevents jurisdictions from enacting policies that define the time and manner in which their employees exchange immigration-status
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information with federal officials.34 DOJ also has suggested that Section 1373 requires
jurisdictions to not only provide advance notification of an alien’s scheduled release from state or
local custody, but also to facilitate transfers from State and local jails to federal immigration
authorities.35 DOJ has further suggested that Section 1373 requires jurisdictions to not only share
the immigration and citizenship status of individuals, but that it also requires jurisdictions to share
an alien’s home and work address and his scheduled release date from incarceration.36 On top of
all of this, DOJ has taken the position that jurisdictions have an affirmative obligation to
communicate DOJ’s interpretation of Section 1373 to their employees.37 Thus, DOJ requires States
not only to certify compliance with the black-letter of Section 1373 but with DOJ’s ever-shifting
34 See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice (Oct. 11, 2017), available at https://www.justice.gov/opa/pressrelease/file/1003041/download (last visited July 6, 2018); Letter from Alan Hanson, Acting Assistant Attorney General, to the Hon. Jim Kenney, Mayor, City of Philadelphia (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003046/download (last visited July 6, 2018). 35 See Def.’s Proposed Findings of Fact 8-11, City of Philadelphia v. Sessions, No. 17-cv-3894 (E.D. Pa. May 17, 2018), ECF No. 200; Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Support 24-26, United States v. California, No. 18-cv-00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (suggesting California law violates § 1373 by restricting the transfer of aliens in state custody to federal custody). 36 See, e.g., Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Support 27-28, United States v. California, 18-cv-00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (asserting that the phrase “information regarding the citizenship or immigration status . . . of any individual” in § 1373 “does not merely denote an alien’s technical immigration status”); Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice, at 2 (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003041/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and (d) to not restrict New York officers from sharing information regarding the date and time of an alien’s release from custody.”). But at least one federal court has ruled that Section 1373 does not govern release dates or home or work addresses. Order re: United States of America’s Mot. for Prelim. Inj., United States v. California, 18-cv-490 (E.D. Cal. July 5, 2018), ECF No. 193. 37 See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice, at 1 (Oct. 11, 2017), available at https://www.justice.gov/opa/pressrelease/file/1003041/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that . . . New York would need to certify that it has communicated this interpretation to its officers and employees.”); Letter from Alan Hanson, Acting Assistant Attorney General, to the Hon. Jim Kenney, Mayor, City of Philadelphia, at 2 (Oct. 11, 2017), available at https://www.justice.gov/opa/press-release/file/1003046/download (last visited July 6, 2018) (“In order to comply with 8 U.S.C. § 1373, the Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order to not restrict Philadelphia’s officers from sharing information regarding immigration status with federal immigration officers. The Department has also determined that Philadelphia would need to certify that it has communicated this interpretation to its officers and employees.”).
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interpretation of the scope of that statute. CAUSES OF ACTION COUNT I
Violation of Separation of Powers (FY 2017 Conditions) 116. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 117. The Constitution vests the spending power in Congress, not the Executive Branch. U.S. Const. art. I § 8, cl. 1. 118. Congress may delegate some discretion to the Executive to decide how to spend appropriated funds, but that discretion is cabined by the scope of the delegation. See City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 119. The Executive cannot amend or cancel appropriations that Congress has duly enacted. See Train v. City of New York, 420 U.S. 35, 38, 44 (1975); In re Aiken Cnty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). 120. The FY 2017 immigration-related conditions amount to a refusal to spend money appropriated by Congress, in violation of the Executive’s constitutional authority to administer the law. 121. Congress did not authorize the notice, access or 1373 conditions. Rather, those conditions were imposed by DOJ. Therefore, the three conditions amount to an improper usurpation of Congress’s spending power by the Executive. 122. The Byrne JAG statute does not authorize the U.S. Attorney General to impose generally applicable substantive conditions on grant recipients. 123. DOJ does not have authority under 34 U.S.C. § 10102(a)(6) to impose the three conditions. 124. DOJ also does not have the authority to determine that Section 1373 is an
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“applicable federal law” for purposes of 34 U.S.C. § 10153(a)(5)(D). 125. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the
Attorney General’s imposition of the three immigration-related conditions on FY 2017 Byrne JAG funds violates the constitutional principle of separation of powers and impermissibly arrogates to the Executive power that is reserved to Congress. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT II Violation of the Administrative Procedure Act
Ultra Vires Conduct (FY 2017 Conditions) 126. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 127. Under the Administrative Procedure Act (“APA”), a court must set “aside agency action that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). DOJ’s imposition of the three immigration-related conditions on the FY 2017 Byrne JAG award are such agency action. 128. DOJ may only exercise authority conferred by statute. See City of Arlington, 569 U.S. at 297. 129. The Byrne JAG statute does not authorize the Attorney General to impose conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 888 F.3d at 283. 130. DOJ also lacks statutory authority to condition Byrne JAG funds on compliance with Section 1373. The Byrne JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass Section 1373. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. Section 1373 does not regulate grantees as grantees nor does it mention federal grants or funds.
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131. Congress has repeatedly considered and rejected legislation that would withhold grant funding as a penalty for noncooperation with federal immigration law.38 Courts should look skeptically on executive action where Congress declined to enact legislation that would have granted the same or substantially similar authority to the executive branch. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000).
132. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General lacks authority to impose the notice, access, and Section 1373 conditions on FY 2017 Byrne JAG funds and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT III Violation of the Administrative Procedure Act Agency Action Not in Accordance with Law (FY 2017 Conditions) 133. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 134. Under the APA, a court must set “aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 135. The notice, access, and Section 1373 conditions are invalid under 34 U.S.C. § 10228(a), which prohibits Executive Branch officials from using law enforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency.
38 See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2016); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3 (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814 114th Cong. § 2 (2015); Financial Services and General Government Appropriations Act, FY2017, H.R. 5485, 114th Cong., § 1217 (2016); see also H.R. 3355, 103d Cong. § 5119 (Nov. 19, 1993) (Senate version of Violent Crime Control and Law Enforcement Act, which would have authorized DOJ to withhold grant funding if the jurisdiction did not cooperate with the Immigration and Naturalization Service).
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136. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General is without authority to impose the notice, access, and Section 1373 conditions on FY 2017 Byrne JAG funds and, in doing so, has acted contrary to law under the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT IV Violation of the Administrative Procedure Act Arbitrary and Capricious Agency Action (FY 2017 Conditions) 137. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 138. Under the APA, a court must set “aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706(2)(A)—for example, because the agency has failed to consider relevant evidence or “articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 139. An agency’s departure from prior practice can also serve as a basis for finding an agency’s interpretation to be arbitrary and capricious if the change in policy constitutes an “unexplained inconsistency.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). 140. DOJ departed from more than a decade of past practice when it imposed the notice, access, and Section 1373 conditions, yet provided almost no explanation for its decision. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (“the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy”). DOJ has never before sought to impose notice and access conditions on grantees, nor has
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it ever “sought to enforce [Section 1373] against a state or local government.”39 141. DOJ has never previously determined that Section 1373 is an “applicable Federal
law” for the purposes of the Byrne JAG program. 142. Despite DOJ’s shift in policy, it has provided virtually no explanation for its
decisions. It released no reports, studies or analysis in connection with its July 25, 2017 announcement of the FY 2017 immigration-related grant conditions, nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.
143. In addition, DOJ “relied on factors which Congress has not intended it to consider,” State Farm, 463 U.S. at 43, by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(6).
144. DOJ also “entirely failed to consider an important aspect of the problem” by failing to recognize how Section 1373 interferes with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
145. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the immigration-related conditions imposed on FY 2017 Byrne JAG funds violate the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT V Tenth Amendment: Commandeering (FY 2017 Conditions) 146. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 147. The Tenth Amendment prohibits the federal government from “requir[ing] States
39 Elizabeth M. McCormick, Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform, 20 Lewis & Clark L. Rev. 165, 170 (2016).
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and localities “to govern according to Congress’ instructions,” New York v. United States, 505 U.S. 144, 162 (1992), or “command[ing] the States’ officers … to administer or enforce a federal regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997).
148. Section 1373 violates the Tenth Amendment because it “unequivocally dictates what a state legislature may and may not do.” Murphy, 138 S. Ct. at 1476. See City of Philadelphia, --- F. Supp. 3d. ---, 2018 WL 2725503, at *33.
149. Because Section 1373 violates the Tenth Amendment, DOJ cannot require jurisdictions to comply with that statute as a condition of receiving FY 2017 Byrne JAG funds. See South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).
150. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Section 1373 conditions imposed on FY 2017 Byrne JAG funds violate the Tenth Amendment. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
COUNT VI Violation of Separation of Powers (FY 2018 Conditions) 151. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 152. The FY 2018 immigration-related conditions amount to a refusal to spend money appropriated by Congress, in violation of the Executive’s constitutional authority to administer the law. 153. Congress did not authorize the notice, access or 1373 conditions, nor did it authorize the additional immigration-related conditions in the FY 2018 State Solicitation. Rather, those conditions were imposed by DOJ. Therefore, these immigration-related conditions amount to an improper usurpation of Congress’s spending power by the Executive. 154. The Byrne JAG statute does not authorize the U.S. Attorney General to impose
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generally applicable substantive conditions on grant recipients. 155. DOJ does not have authority under 34 U.S.C. § 10102(a)(6) to impose any of the
immigration-related conditions. 156. DOJ also does not have the authority to determine that Sections 1373 and 1644 or
8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3) are “applicable federal laws” for purposes of 34 U.S.C. § 10153(a)(5)(D).
157. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General’s imposition of the immigration-related conditions in the FY 2018 State Solicitation violates the constitutional principle of separation of powers and impermissibly arrogates to the Executive power that is reserved to Congress. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT VII Violation of the Administrative Procedure Act
Ultra Vires Conduct (FY 2018 Conditions) 158. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 159. The Byrne JAG statute does not authorize the Attorney General to impose conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 888 F.3d at 283. 160. DOJ also lacks statutory authority to condition Byrne JAG funds on compliance with Sections 1373 and 1644 or 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3). The Byrne JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass these immigration-related statutes. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. None of these statutes regulate grantees as grantees nor does it mention federal
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grants or funds. 161. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a
declaration that the Attorney General lacks authority to impose the immigration-related conditions in the FY 2018 State Solicitation and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT VIII Violation of the Administrative Procedure Act Agency Action Not in Accordance with Law (FY 2018 Conditions) 162. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 163. Under the APA, a court must set “aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 164. The immigration-related conditions in the FY 2018 State Solicitation are invalid under 34 U.S.C. § 10228(a), which prohibits Executive Branch officials from using lawenforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency. 165. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General is without authority to impose the immigration-related conditions in the FY 2018 State Solicitation and, in doing so, has acted contrary to law under the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT IX Violation of the Administrative Procedure Act Arbitrary and Capricious Agency Action (FY 2018 Conditions) 166. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 167. DOJ has also never previously determined that Section 1644 or 8 U.S.C. §§ 1226(a)
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& (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3) are “applicable federal laws” for the purposes of the Byrne JAG program.
168. Despite DOJ’s shift in policy, it has provided virtually no explanation for its decisions. It released no reports, studies or analysis in connection with its July 25, 2017 announcement of the three immigration-related grant conditions for FY 2017. Neither did it release reports, studies or analysis in connection with its July 20, 2018 release of the FY 2018 State Solicitation containing those and additional immigration-related grant conditions. Nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.
169. In addition, DOJ “relied on factors which Congress has not intended it to consider,” State Farm, 463 U.S. at 43, by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(6).
170. DOJ also “entirely failed to consider an important aspect of the problem” by failing to recognize how Section 1373 and laws like it, including Section 1664, interfere with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
171. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the immigration-related conditions in the FY 2018 State Solicitation violate the APA. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT X Tenth Amendment: Commandeering (FY 2018 Conditions) 172. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 173. Pursuant to 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Section 1373 and 1644 conditions imposed in the State solicitation process for FY 2018 violate the Tenth
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Amendment. Plaintiffs are also entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray this Court:
(a) Declare that the three immigration-related conditions for the FY 2017 Byrne JAG program are unlawful;
(b) Declare that the immigration-related conditions for the FY 2018 Byrne JAG program are unlawful;
(c) Enjoin Defendants from enforcing the three conditions for the FY 2017 Byrne JAG program on any jurisdiction and retain jurisdiction to monitor DOJ’s compliance with this Court’s judgment;
(d) Enjoin Defendants from enforcing the immigration-related conditions contained in the FY 2018 State Solicitation on any jurisdiction and retain jurisdiction to monitor DOJ’s compliance with this Court’s judgment;
(e) Issue a writ of mandamus compelling Defendants to immediately send a FY 2017 Byrne JAG award letter without the three immigration-related conditions to the States and their localities;
(f) Issue a writ of mandamus compelling Defendants to immediately issue a new FY 2018 State Solicitation without the immigration-related conditions;
(g) Award the States their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and
(h) Grant other such relief as this Court may deem proper.
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Dated: August 6, 2018
Anisha S. Dasgupta, Deputy Solicitor General Caroline A. Olsen,† Assistant Solicitor General Eric R. Haren, Special Counsel & Senior Advisor
Of Counsel
GEORGE JEPSEN Attorney General State of Connecticut
By: /s/ Mark F. Kohler Mark F. Kohler, ǂ Assistant Attorney General Michael Skold, ǂ Assistant Attorney General 55 Elm St., P.O. Box 120 Hartford, CT 06141-0120 Mark.Kohler@ct.gov Michael.Skold@ct.gov Phone: (860) 808-5020

Respectfully submitted,
BARBARA D. UNDERWOOD Attorney General State of New York
By: /s/ Nancy Trasande Lourdes M. Rosado,† Bureau Chief Jessica Attie,† Special Counsel Lilia Toson,† Assistant Attorney General Nancy Trasande,† Assistant Attorney General Conor Duffy,* Assistant Attorney General Civil Rights Bureau 28 Liberty St., 20th Floor New York, NY 10005 Lourdes.Rosado@ag.ny.gov Jessica.Attie@ag.ny.gov Lilia.Toson@ag.ny.gov Nancy.Trasande@ag.ny.gov Conor.Duffy@ag.ny.gov Phone: (212) 416-6438
MAURA HEALEY Attorney General Commonwealth of Massachusetts
By: /s/Jonathan Miller Jonathan Miller,† Chief, Public Protection and Advocacy Bureau Genevieve C. Nadeau,† Chief, Civil Rights Division One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Genevieve.Nadeau@state.ma.us Phone: (617) 727-2200

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GURBIR S. GREWAL Attorney General State of New Jersey
By: /s/ Rachel Wainer Apter Rachel Wainer Apter,** Assistant Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor Trenton, NJ 08625-0116 Phone: (609) 376-2702 Rachel.Apter@njoag.gov
MARK R. HERRING Attorney General Commonwealth of Virginia
By: /s/ Victoria Pearson Victoria Pearson,** Deputy Attorney General 202 North 9th Street Richmond, VA 23219 Phone: (804) 786-4319 VPearson@oag.state.va.us

PETER F. KILMARTIN Attorney General State of Rode Island
By: /s/ Michael W. Field Michael W. Field,** Assistant Attorney General The State of Rhode Island Office of the Attorney General 150 South Main Street Providence, Rhode Island 02903 Phone: (401) 274-4400, Ext: 2380 mfield@riag.ri.gov
ROBERT W. FERGUSON Attorney General State of Washington
By: /s/ Luke Eaton Luke Eatonǂ Assistant Attorney General P.O. Box 40100 Olympia, WA 98504-0100 Phone: (360) 753-6200 LukeE1@atg.wa.gov

†Admitted in the S.D.N.Y. ǂ Admitted pro hac vice * S.D.N.Y. admission application forthcoming **Pro hac vice motion forthcoming

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 Case 1:18-cv-06471-ER Document 114 Filed 11/30/18 Page 1 of 43

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATES OF NEW YORK, CONNECTICUT, NEW JERSEY, RHODE ISLAND, and WASHINGTON, and COMMONWEALTHS OF MASSACHUSETTS and VIRGINIA,
Plaintiffs,
–against–
UNITED STATES DEPARTMENT OF JUSTICE, and MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States,
Defendants.

OPINION AND ORDER 18 Civ. 6471 (ER)

CITY OF NEW YORK,
Plaintiff,
–against–
MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE,
Defendants.*

18 Civ. 6474 (ER)

Ramos, D.J.: Since Congress created the modern version of the program in 2006, the Plaintiff States
and City of New York have received funding for criminal justice initiatives through the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program, named after New York City police officer Edward R. Byrne, who was killed in the line of duty. In 2017, for the first time in

* Pursuant to Federal Rule of Civil Procedure 25(d), Acting Attorney General Matthew G. Whitaker is automatically substituted as a party in place of former Attorney General Jefferson B. Sessions III.

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the history of the program, the U.S. Department of Justice (“DOJ”) and Attorney General (collectively, “Defendants”) imposed three immigration-related conditions that grantees must comply with in order to receive funding. Plaintiffs bring this suit challenging these new conditions. Consistent with every other court that has considered these issues, the Court concludes that Defendants did not have lawful authority to impose these conditions. For the reasons set forth below, Plaintiffs’ motion for partial summary judgment is GRANTED, and Defendants’ motion for partial summary judgment or in the alternative to dismiss is DENIED. I. Background
A. The Byrne JAG Program The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. I, 82 Stat. 197, which created grants to assist the law enforcement efforts of state and local authorities. After undergoing several amendments, the modern Byrne JAG program was created through the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006). The Byrne JAG program is now codified at 34 U.S.C. §§ 10151–10158. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health. 34 U.S.C. §§ 10152(a)(1), 10153(a). The funds are disbursed according to a formula based on the particular jurisdiction’s population and violent crime statistics. Id. § 10156. Grantees may also make subgrants to localities or community organizations, id. § 10152(b), and some state funds are set aside for subgrants to localities, id. § 10156(c)(2).
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On July 25, 2017, Defendants announced that they were imposing three new
immigration-related conditions on applicants for Byrne JAG funds in fiscal year (“FY”) 2017.1
According to the press release announcing the change, the conditions were intended to
“encourage . . . ‘sanctuary’ jurisdictions to change their policies and partner with federal law
enforcement to remove criminals.”2 Holt Decl. Ex. 17, at AR-00992, Doc. 33-17.3
The first condition requires grantees, upon request, to give advance notice to the
Department of Homeland Security (“DHS”) of the scheduled release date and time of aliens
housed in state or local correctional facilities (the “Notice Condition”). As stated in the award
documents, the Notice Condition provides:
1 In 2016, Defendants imposed a related but different condition on the City of New York’s Byrne JAG grant. The condition required the City to “undertake a review to validate its compliance with 8 U.S.C § 1373,” a statute which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status (as will be discussed in detail below). City’s FY 2016 Byrne JAG Grant ¶ 53, Trautman Decl. Ex. A, Doc. 53-1. The City was further required to submit documentation several months after accepting the grant showing that it was in compliance or that it came into compliance. Id. The City accepted the condition and submitted documents certifying that “its laws and policies comply with and operate within the constitutional bounds of § 1373.” City’s June 27, 2017 Letter 2, Soler Decl. Ex. A, Doc. 41-1. This condition was not imposed on the Plaintiff States. See New York State’s FY 2016 Byrne JAG Grant, Trautman Decl. Ex. B, Doc. 53-2; Trautman Decl. ¶ 3, Doc. 53.
2 The Court notes that the label of “sanctuary” cities or states “is commonly misunderstood.” City of Chicago v. Sessions, 888 F.3d 272, 281 (7th Cir. 2018), vacated in part, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). Although Defendants claim that “‘sanctuary’ policies . . . intentionally undermine our laws and protect illegal aliens who have committed crimes,” AR-00992, many so-called sanctuary jurisdictions “do[] not interfere in any way with the federal government’s lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government,” Chicago, 888 F.3d at 281. Indeed, many such jurisdictions will cooperate with immigration enforcement authorities for persons most likely to present a threat to the community, and “refuse such coordination where the threat posed by the individual is lesser, reflect[ing] the decision by the state and local authorities as how best to further the law enforcement objectives of their communities with the resources at their disposal.” Id.; see also United States v. California, 314 F. Supp. 3d 1077, 1105 (E.D. Cal. 2018) (“Standing aside does not equate to standing in the way.”).
3 Unless otherwise indicated, references to “Doc.” relate to documents filed in the City’s action, No. 18 Civ. 6474. The motion papers and supporting documents submitted in the two related actions are essentially identical.
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A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and — as early as practicable . . . — provide the requested notice to DHS.
New York State’s FY 2017 Byrne JAG Grant ¶ 55(1)(B), Holt Decl. Ex. 1, Doc. 33-1.
The second condition requires grantees to give federal agents access to aliens in state or
local correctional facilities in order to question them about their immigration status (the “Access
Condition”). The Access Condition provides:
A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States. Id. ¶ 55(1)(A).4
The third condition requires grantees to certify their compliance with 8 U.S.C. § 1373,
which prohibits states and localities from restricting their officials from communicating with
immigration authorities regarding anyone’s citizenship or immigration status (the “Compliance
Condition”). The Compliance Condition provides:
[N]o State or local government entity, -agency, or -official may prohibit or in any way restrict — (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b).
Id. ¶ 53(1).
4 While the quoted provisions apply to state jurisdictions, similar terms apply to local jurisdictions. See New York State’s FY 2017 Byrne JAG Grant ¶ 56(1)(A)–(B).
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Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of “credible evidence” of a violation of the Compliance Condition. Id. ¶¶ 53(3), 54(1)(D), 55(2), 56(2). Grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. Id. ¶ 1; Holt Decl. Ex. 17, at AR-01031, -01033.
B. Plaintiffs The States of New York, Connecticut, New Jersey, Rhode Island, and Washington, the Commonwealths of Massachusetts and Virginia (collectively, the “States”), and the City of New York (the “City”) have received Byrne JAG funds since at least 2006 (and some had received predecessor grants for decades). Pls.’ 56.1 ¶¶ 63, 66, 89, 114, Doc. 23. Plaintiffs have used these funds to support a broad array of law enforcement, criminal justice, public safety, and drug treatment programs. Id. ¶¶ 64, 115. On June 26, 2018, DOJ issued award letters to the States requiring their acceptance of the new conditions described above in order to receive their FY 2017 Byrne JAG funds, which collectively totaled over $25 million. Id. ¶¶ 26, 30. Although the City had also applied for a FY 2017 Byrne JAG grant of over $4 million, the City did not receive an award letter at that time. Id. ¶¶ 44, 51, 114. Instead, in letters sent several months earlier, DOJ informed the City that, “based on a preliminary review, the Department has determined that [the City] appears to have laws, policies, or practices that violate 8 U.S.C. § 1373,” DOJ’s Oct. 11, 2017 Letter 1, Soler Decl. Ex. B., Doc. 41-2, which could result in the City’s “ineligib[ility] for FY 2017 Byrne JAG funds,” DOJ’s Jan. 24, 2018 Letter 2, Soler Decl. Ex. D, Doc. 41-4. DOJ cited, among other things, the City’s Executive Order No. 41 as a policy that “appears to . . . violate” § 1373’s prohibition on restricting communications between local officials and immigration authorities regarding immigration status. DOJ’s Oct. 11, 2017 Letter
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1–2. Executive Order No. 41, together with Executive Order No. 34, forms the City’s “General Confidentiality Policy,” which was issued by then-Mayor Michael Bloomberg in 2003. Pls.’ 56.1 ¶ 143. This policy protects “confidential information,” which is defined as including, as relevant here, information concerning an individual’s immigration status.5 Exec. Order No. 41, § 1 (2003), Negrón Decl. Ex. B, Doc. 42-2. Under the policy, City employees may not disclose an individual’s immigration status except in limited circumstances, such as when the disclosure is authorized by the individual, is required by law, is to another City employee as necessary to fulfill a governmental purpose, pertains to an individual suspected of illegal activity (other than mere status as an undocumented immigrant), or is necessary to investigate or apprehend persons suspected of terrorist or illegal activity (other than mere undocumented status). Id. § 2. Additionally, police officers may not inquire about a person’s immigration status unless investigating illegal activity other than mere undocumented status, and may not inquire about the immigration status of crime victims or witnesses at all. Id. § 4(4). Other City employees may not inquire about any person’s immigration status unless the inquiry is required by law or is necessary to determine eligibility for or to provide government services. Id. § 4(3).
The purpose of the City’s General Confidentiality Policy is to assure residents that “they may seek and obtain the assistance of City agencies regardless of personal or private attributes, without negative consequences to their personal lives,” because “the obtaining of pertinent information, which is essential to the performance of a wide variety of governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved.” Id. at 1. The City maintains that its General Confidentiality Policy, in conjunction
5 “[C]onfidential information” also includes information relating to an individual’s sexual orientation, status as a victim of domestic violence or sexual assault, status as a crime witness, receipt of public assistance, or income tax records. Exec. Order No. 41, § 1.
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with other privacy laws and policies, encourages residents to report crimes, seek medical treatment, and use other City services because they can trust that the City will protect their personal information. Pls.’ 56.1 ¶ 177. The City believes that these laws and policies are instrumental in maintaining the City’s historically low crime rates by promoting trust and cooperation between the New York Police Department and the public, including immigrant communities that otherwise may retreat into the shadows if they believe that the police will share their information with federal immigration authorities. Id. ¶¶ 184, 187, 189. Similarly, if people fear that the City could disclose their information to immigration authorities, they may refuse to cooperate with public health investigations or obtain medical services such as immunizations. Id. ¶ 194.
C. Related Litigation The new conditions on Byrne JAG funding have generated litigation throughout the country. In Chicago, a district court in the Northern District of Illinois issued a nationwide preliminary injunction against the Notice and Access Conditions. City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017). On an interlocutory appeal, the Seventh Circuit affirmed that decision, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review, see generally City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *1 (7th Cir. Aug. 10, 2018). The district court, on summary judgment, then permanently enjoined not only the Notice and Access Conditions, but also the Compliance Condition, citing the Supreme Court’s intervening decision in Murphy v. NCAA, 138 S. Ct. 1461 (2018), and similarly stayed the injunction’s nationwide scope. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). In a related case also in the Northern District of Illinois, the City of Evanston and the U.S. Conference of Mayors obtained a preliminary injunction against all three conditions, but the
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district court stayed the injunction’s “near-nationwide effect” as to the Conference. City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018), Doc. 23. The Seventh Circuit then lifted the stay as to the Conference given that the injunction was “limited to the parties actually before the court.” U.S. Conference of Mayors v. Sessions, No. 18-2734, slip op. at 2 (7th Cir. Aug. 29, 2018), Doc. 13. In other words, the injunction applied only to the City of Evanston and those local jurisdictions that are actually members of the U.S. Conference of Mayors.6
In Philadelphia, a district court in the Eastern District of Pennsylvania preliminarily enjoined the Attorney General from denying that city FY 2017 Byrne JAG funds on the basis of the challenged conditions. City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017). Following a bench trial, the district court then permanently enjoined all three conditions. City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018). The Attorney General has appealed to the Third Circuit.
In California, the state and the City and County of San Francisco sued over the conditions in the Northern District of California, and the district court initially denied California’s request for a preliminary injunction against the Compliance Condition. California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018). Subsequently, with the benefit of a full record on summary judgment, the district court then permanently enjoined all three conditions but
6 The City of New York is a member of the U.S. Conference of Mayors. As a result of the Evanston litigation, DOJ issued the City’s FY 2017 Byrne JAG award on October 10, 2018, and represented that it will not at this time enforce the challenged conditions against the City. The parties agree that (1) the City’s claims are not moot because DOJ may in the future enforce the challenged conditions against the City if the preliminary injunction in Evanston is dissolved or reversed on appeal, see N.Y. State Nat. Org. for Women v. Terry, 159 F.3d 86, 92 (2d Cir. 1998) (“[V]oluntary cessation of misconduct does not engender mootness where the cessation resulted from a coercive order and a threat of sanctions.”), and (2) the City’s claims under the Administrative Procedure Act are ripe in light of DOJ’s reaching a decision on the City’s Byrne JAG application. See Docs. 65, 72.
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stayed the injunction’s nationwide scope. City & County of San Francisco v. Sessions, Nos. 17 Civ. 04642, 17 Civ. 04701 (WHO), 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018).
D. This Case The States and the City brought two related actions on July 18, 2018, and filed amended complaints on August 6, 2018. States’ First Am. Compl. (“FAC”), No. 18 Civ. 6471, Doc. 32; City’s FAC, No. 18 Civ. 6474, Doc. 15. The States challenge the imposition of the three FY 2017 conditions on five bases: (1) the conditions violate the separation of powers, (2) the conditions are ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions are not in accordance with law under the APA, (4) the conditions are arbitrary and capricious under the APA, and (5) § 1373 violates the Tenth Amendment’s prohibition on commandeering. States’ FAC ¶¶ 116–150. In addition to these claims, the City also asserts that the conditions violate the Spending Clause and seeks a declaratory judgment that § 1373 is unconstitutional or, in the alternative, that the City complies with § 1373. City’s FAC ¶¶ 111–148, 173–179.7 The States and the City have moved for partial summary judgment on their claims challenging the FY 2017 conditions. No. 18 Civ. 6471, Doc. 56; No. 18 Civ. 6474, Doc. 21. Defendants have moved to dismiss or, alternatively, for partial summary judgment on those
7 In their amended complaints, the States and the City also assert related claims challenging identical conditions as well as additional conditions attached to FY 2018 funds, which were announced on July 20, 2018. States’ FAC ¶¶ 4, 151–173; City’s FAC ¶¶ 6, 149–172. According to the amended complaints, in addition to the three conditions imposed on FY 2017 grants, recipients of FY 2018 funds must also certify that they will not (1) violate 8 U.S.C. § 1644, another statute prohibiting restrictions on exchanging immigration status information with federal authorities; (2) violate 8 U.S.C. § 1324(a), which prohibits knowingly or recklessly concealing or harboring aliens; (3) impede federal authorities in the arrest or removal of aliens as authorized by 8 U.S.C. §§ 1226(a), (c), 1231(a)(4); (4) impede federal authorities in the interrogation of aliens as authorized by 8 U.S.C. § 1357(a)(1); or (5) impede the Attorney General’s reports on the number of undocumented immigrants incarcerated in federal and state prisons for felonies and efforts to remove them pursuant to 8 U.S.C. § 1366(1), (3). States’ FAC ¶ 4; City’s FAC ¶ 6. The FY 2018 conditions are not at issue in the instant motions for partial summary judgment.
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claims. No. 18 Civ. 6471, Doc. 88; No. 18 Civ. 6474, Doc. 50. The motions are fully briefed, and oral argument was held on November 16, 2018. II. Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might affect the outcome of the litigation under the governing law. Id.
The party moving for summary judgment is initially responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the nonmoving party must “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” FDIC. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010).
In deciding a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture, or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Rather, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at 467–68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–57 (1986)).
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In challenges to agency action under the APA, summary judgment is the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. Chen v. Bd. of Immigration Appeals, 164 F. Supp. 3d 612, 617 (S.D.N.Y. 2016). “Where, as here, a party seeks review of agency action under the APA and ‘the entire case on review is a question of law,’ summary judgment is generally appropriate.” Noroozi v. Napolitano, 905 F. Supp. 2d 535, 541 (S.D.N.Y. 2012) (quoting Citizens Against Casino Gambling in Erie Cty. v. Hogen, No. 07 Civ. 0451 (S), 2008 WL 2746566, at *25 (W.D.N.Y. July 8, 2008)). III. Discussion
This case challenges the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled. As such, this case is fundamentally about the separation of powers among the branches of our government and the interplay of dual sovereign authorities in our federalist system. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny” through limits on concentrated power. Chicago, 888 F.3d at 277. “Concentration of power in the hands of a single branch is a threat to liberty,” which “is always at stake when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory v. Ashcroft, 501 U.S. 452, 458–59 (1991). That balance of power must be maintained “[b]y guarding against encroachments by the Federal Government on fundamental aspects of
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state sovereignty.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 769 (2002). It is incumbent on the judiciary “to act as a check on such usurpation of power,” whether among the branches of government or the federal and state governments. Chicago, 888 F.3d at 277. With these principles in mind, the Court turns to the legal issues that govern this case.
A. Statutory Authority for the Conditions Under the APA, courts must “hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” “or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). In determining whether an agency action is ultra vires, “the question . . . is always whether the agency has gone beyond what Congress has permitted it to do.” City of Arlington v. FCC, 569 U.S. 290, 297–98 (2013); see also NRDC v. Abraham, 355 F.3d 179, 202 (2d Cir. 2004) (discussing the “well-established principle” that “an agency literally has no power to act . . . unless and until Congress confers power upon it” (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986))). At the outset, the Court notes that the Byrne JAG grant is “a formula grant rather than a discretionary grant,” Chicago, 888 F.3d at 285, which means it is “not awarded at the discretion of a state or federal agency, but . . . pursuant to a statutory formula,” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Under the Byrne JAG statute, “the Attorney General shall . . . allocate” grant money pursuant to a statutory formula based on the state’s population and violent crime statistics. 34 U.S.C. § 10156(a)(1) (emphasis added). Because § 10156(a)(1) does not give the Attorney General discretion to award or withhold Byrne JAG grants or determine the conditions under which they are disbursed, the authority for the challenged conditions must come from some other statutory provision, if at all. Defendants point to two potential provisions: 34 U.S.C. § 10102(a)(6) and 34 U.S.C. § 10153(a)(5)(D).
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i. 34 U.S.C. § 10102(a)(6) Section 10102, which is located in a different subchapter from the Byrne JAG program, sets out the duties of the Assistant Attorney General for the Office of Justice Programs8 and
provides as follows:
The Assistant Attorney General shall— (1) publish and disseminate information on the conditions and progress of the criminal justice systems; (2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
34 U.S.C. § 10102(a) (emphasis added).
Defendants contend that the italicized language permits the Assistant Attorney General to
“prioritize federal grant monies for those state and local jurisdictions that assist in furthering
relevant federal purposes,” by imposing “special conditions” such as those challenged here “on
all grants” including the Byrne JAG program. Defs.’ Mem. 15, 18 (emphases omitted), Doc. 51.
8 By statute, DOJ’s Office of Justice Programs is headed by this Assistant Attorney General. 34 U.S.C. § 10101.
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However, Defendants’ “interpretation is contrary to the plain meaning of the statutory language.” Chicago, 888 F.3d at 284. The problem for Defendants is that the italicized language begins with the word “including,” which “by definition is used to designate that a . . . thing is part of a particular group.” Id. (citing Including, Oxford English Dictionary (3d ed. 2016)). Thus, the Assistant Attorney General can only place special conditions or determine priority purposes to the extent that power already “may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 34 U.S.C. § 10102(a)(6). In other words, the italicized language is not a “stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants”; rather, such authority must come from elsewhere in the chapter or have been delegated by the Attorney General, who may only delegate it to the extent that he has such power himself. Chicago, 888 F.3d at 285. Because Defendants cannot cite another provision granting that power to the Assistant Attorney General or the Attorney General, § 10102(a)(6) does not provide authority for imposing any of the challenged conditions.
Moreover, the statutory structure indicates that § 10102(a)(6) is “an unlikely place for Congress to place a power as broad” as Defendants would have it. Id. The “including” clause is tacked on to a catch-all provision at the end of a list of explicit powers, which “would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General.” Id. It would also be “inconsistent with the goal of the statute to support the needs of law enforcement while providing flexibility to state and local governments” and “at odds with the nature of the Byrne JAG grant, which is a formula grant rather than a discretionary grant.” Id. “[I]t is inconceivable that Congress would have anticipated that the Assistant Attorney General could
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abrogate the entire distribution scheme and deny all funds to states and localities . . . based on the Assistant Attorney General’s decision to impose his or her own conditions—the putative authority for which is provided in a different statute.” Id. at 286.9
ii. 34 U.S.C. § 10153(a)(5)(D) Defendants contend that § 10153(a)(5)(D) provides authority for imposing the Compliance Condition only. This section provides that applicants for Byrne JAG funds must submit an application with a number of certifications, assurances, and details, including: A certification, made in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant (or by another officer of the applicant, if qualified under regulations promulgated by the Attorney General), that—
(A) the programs to be funded by the grant meet all the requirements of this part; (B) all the information contained in the application is correct; (C) there has been appropriate coordination with affected agencies; and (D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 34 U.S.C. § 10153(a)(5) (emphasis added). Defendants argue that 8 U.S.C. § 1373 is an “applicable Federal law,” with which applicants must certify compliance. Defendants contend that § 10153(a)(5)(D) covers all federal laws applicable to Byrne JAG applicants, i.e., states and localities (as opposed to private individuals or entities). Defs.’ Mem. 20. They further contend that the authority to require a
9 The Court need not address whether Defendants’ “argument might fail for an additional reason, that the term ‘special conditions’ is a term of art referring to conditions for high-risk grantees with difficulty adhering to grant requirements” that does not apply to the challenged conditions. Chicago, 888 F.3d at 285 n.2 (citing Philadelphia, 280 F. Supp. 3d at 617).
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“certification, made in a form acceptable to the Attorney General,” 34 U.S.C. § 10153(a)(5),10
constitutes “a delegation to the Attorney General to determine whether a particular federal law
constitutes an ‘applicable Federal law[],’” Defs.’ Mem. 19 (alteration in original) (quoting 34
U.S.C. § 10153(a)(5)(D)).
Plaintiffs respond that “applicable Federal laws” refers to only those laws that expressly
apply to federal grants. Pls.’ Mem. 26, Doc. 22. For example, prohibitions on discrimination in
“any program or activity receiving Federal financial assistance” would meet this definition, 42
U.S.C. § 2000d, while the provisions concerning communications with immigration authorities
in § 1373 would not. They argue that Congress could not have intended to require applicants to
certify, under threat of criminal prosecution, their compliance with every possible law that could conceivably apply to them.11 They argue that such a broad interpretation would be inconsistent
with the structure of § 10153, which sets forth largely technical and ministerial application requirements pertaining to the grant itself;12 past practice of DOJ, which understood applicable laws to have the narrower construction;13 and the goal of the program to reduce administrative
10 See also 34 U.S.C. § 10153(a) (providing that applicants “shall submit an application to the Attorney General . . . in such form as the Attorney General may require”). 11 While vast, presumably the range of applicable laws would be limited by the constitutional principle that the conditions must “bear some relation to the purpose of the federal funds.” Chicago, 264 F. Supp. 3d at 945 (citing South Dakota v. Dole, 483 U.S. 203, 207–08 (1987)). 12 See 34 U.S.C. § 10153(a)(1) (Byrne JAG funds may not be used to supplant state or local funds); id. § 10153(a)(2)–(3) (application must be submitted for review and public comment); id. § 10153(a)(4) (applicant must report programmatic and financial data during the grant period); id. § 10153(a)(6) (applicant must set forth plan for how the funds will be used). 13 See Dep’t of Justice Study Grp., Report to the Attorney General: Restructuring the Justice Department’s Program of Assistance to State and Local Governments for Crime Control and Criminal Justice System Improvement 8–9 (1977) (identifying “over twenty Federal statutes impos[ing] controls and limitations on the use of [Law Enforcement Assistance Administration] grant funds”), Holt Decl. Ex. 22, Doc. 33-25; see also New York State’s FY 2016 Byrne JAG Grant, Trautman Decl. Ex. B (requiring compliance with certain laws applicable to federal grants, such as those pertaining to nondiscrimination, but not § 1373). Even a certification form currently in use still appears to equate “applicable federal
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burdens in the grant process.14 Pls.’ Mem. 27–29; see also ACLU’s Amici Br. 3–8, Doc. 71. Plaintiffs further argue that the Attorney General’s authority to determine the “form” of the application cannot constitute authority to alter the substantive requirements of compliance with particular laws, 34 U.S.C. § 10153(a)(5), and in any event, Congress could not have intended to delegate the authority to determine what constitutes an “applicable” law, because otherwise it would have done so explicitly, as it has done in other statutes.15 Pls.’ Reply 16–17, Doc. 56.
On this final point, Plaintiffs are surely correct that the Attorney General’s authority to determine the “form” of the application does not include the ability to dictate the “substance” of which laws an applicant must comply with as a condition of grant funding. Form, Black’s Law Dictionary (10th ed. 2014) (defining “form” as “[t]he outer shape, structure, or configuration of something, as distinguished from its substance or matter”). “There is no indication that an acceptable form of the certification would encompass additional substantive compliance with laws not directly required by Congress.” San Francisco, 2018 WL 4859528, at *18; see Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (stating that “[i]t would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority . . . but to have given him, just by implication,” much broader authority). If Congress wanted to delegate
statutes and regulations” with “federal statutes and regulations applicable to the award.” Holt Decl. Ex. 17, at AR-01037 (emphasis added) (certifying that “(a) the Applicant will comply with all award requirements and all federal statutes and regulations applicable to the award; (b) the Applicant will require all subrecipients to comply with all applicable award requirements and all applicable federal statutes and regulations”). 14 See S. Rep. No. 96-142, at 8 (1979) (listing “reduced red tape” as the first goal of reforms to a predecessor program); Federal Assistance to State and Local Criminal Justice Agencies: Hearing on S. 1245, S. 1882, S. 3270, and S. 3280 Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. on the Judiciary, 95th Cong. 383 (1978) (letter of Att’y Gen. Griffin B. Bell) (stating that the bill was “designed” to “simplify[] the grant process”), Holt Decl. Ex. 25, Doc. 33-28. 15 See 26 U.S.C. § 432(e)(9)(E)(iv)(II) (referencing compliance with “other applicable law, as determined by the Secretary of the Treasury” (emphasis added)).
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this substantive authority to the Attorney General, it would have done so explicitly. “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
However, the question remains as to the scope of “applicable” federal laws with which applicants must certify compliance: Does this mean laws applicable to the state or locality, or laws applicable to the grant? “Both positions are plausible,” Chicago, 264 F. Supp. 3d at 944, and “the question is a ‘close call,’” Philadelphia, 280 F. Supp. 3d at 619. On one hand, “Congress could expect an entity receiving federal funds to certify its compliance with federal law, as the entity is—independent of receiving federal funds—obligated to comply.” Chicago, 264 F. Supp. 3d at 945. And the command that “the applicant will comply with . . . all other applicable Federal laws,” by virtue of the proximity of the words, suggests laws that are applicable to the “applicant.” 34 U.S.C. § 10153(a)(5)(D). But this does not answer the question of whether this means laws applicable to the applicant as a state or locality, or laws applicable to the applicant as an applicant for federal grant funding. The structure of § 10153, which concerns requirements pertaining to the grant and the application, points toward the latter reading. See San Francisco, 2018 WL 4859528, at *17 (“[B]ecause all the other conditions in Section 10153(a) apply to the grant itself, the statutory context does not support imposing a condition beyond the grant administration process.”).
In any event, it is unclear from the statutory language whether Congress intended to condition Byrne JAG funds on compliance with all federal laws applicable to the state or locality or compliance with all federal laws applicable to federal grants. What is clear, however, is that “if Congress intends to impose a condition on the grant of federal moneys, it must do so
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unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). “By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. Under this “clear notice” rule, the Court must view the statute “from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the] funds and the obligations that go with those funds,” and “must ask whether such a state official would clearly understand that one of the obligations of the Act is the [purported] obligation,” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006), i.e., to comply with all federal laws “applicable” to the state. “This malleable language does not provide the ‘clear notice that would be needed to attach such a condition to a State’s receipt of . . . funds.’” Philadelphia, 280 F. Supp. 3d at 647 (quoting Arlington Cent., 548 U.S. at 300). Conversely, given the structure of § 10153, which concerns the requirements of the application and the grant, as well as the parties’ long history of treating “applicable Federal laws” as encompassing laws applicable to federal grants, grant recipients, and the grant-making process, such a construction gives fair notice of the terms of the funding. Accordingly, the Court concludes that “applicable Federal laws” for purposes of 34 U.S.C. § 10153(a)(5)(D) means federal laws applicable to the grant.
As the parties do not dispute, § 1373 is not one of those applicable laws under this narrower construction of § 10153(a)(5)(D). Accordingly, Defendants did not have statutory authority to condition Byrne JAG funding on compliance with § 1373. But even if Defendants’ broader interpretation of § 10153(a)(5)(D) carried the day, § 1373 would still not be an “applicable” law because it is unconstitutional, as will be explained below, and “no matter the breadth of this provision, it will never capture an unconstitutional statute.” Chicago, 321 F. Supp. 3d at 875.
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B. Section 1373 and the Tenth Amendment i. The Anticommandeering Doctrine
The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. “[T]he Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” New York v. United States, 505 U.S. 144, 157 (1992).
The Tenth Amendment embodies an “anticommandeering principle,” which “withhold[s] from Congress the power to issue orders directly to the States.” Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018); see Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”); New York, 505 U.S. at 188 (“The Federal Government may not compel the States to enact or administer a federal regulatory program.”).
There are three significant purposes served by the anticommandeering doctrine. First, by “divid[ing] authority between federal and state governments,” it promotes a “healthy balance of power between the States and the Federal Government [that reduces] the risk of tyranny and abuse from either front.” Murphy, 138 S. Ct. at 1477 (quoting New York, 505 U.S. at 181). Second, the anticommandeering doctrine supports “political accountability,” because “if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred.” Id. And third, the anticommandeering rule “prevents Congress from shifting the costs of regulation to the States,” because “if Congress can compel the States to enact and enforce its program, Congress need not” “weigh the expected benefits of the program against its costs.” Id.
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Most recently, in Murphy, the Supreme Court held that the Professional and Amateur Sports Protection Act (“PASPA”), which prohibited states from authorizing sports gambling, violated the anticommandeering rule because it “unequivocally dictates what a state legislature may and may not do.” Id. at 1478. The Court explained that PASPA operated “as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals,” which was a “direct affront to state sovereignty.” Id.
In Murphy, the supporters of PASPA argued that commandeering occurs only when Congress “command[s] ‘affirmative’ action as opposed to imposing a prohibition,” but the Supreme Court rejected that distinction as “empty.” Id. “The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id.
There are two important limits on the anticommandeering doctrine. First, “[t]he anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.” Id. Thus, Congress may enact laws that “appl[y] equally to state and private actors.” Id. at 1479.
Second, commandeering does not occur when Congress validly preempts state law through the Supremacy Clause. In preemption, “Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.” Id. at 1480. To qualify as a preemption provision, the law “must represent the exercise of a power conferred on Congress by the Constitution,” and it “must be best read as one that regulates private actors” because “the Constitution ‘confers upon Congress the power to regulate individuals, not States.’” Id. at 1479 (quoting New York, 505 U.S. at 166). Although a
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preemption provision that prohibits contrary state law “might appear to operate directly on the States,” in fact, it “confers on private entities . . . a federal right to engage in certain conduct subject only to certain (federal) constraints” and “to be free from any other . . . requirements.” Id. at 1480–81. In sum, “every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.” Id. at 1481. Thus, the PASPA provision prohibiting state authorization of sports gambling, which did not confer any federal rights nor impose any federal restrictions on private actors, could not be understood “as anything other than a direct command to the States,” which put it firmly in the category of impermissible commandeering and not permissible preemption. Id.
ii. Section 1373 Section 1373 provides, in relevant part: (a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. § 1373(a)–(b).
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In sum, § 1373 “prohibits any ‘government entity or official’ from restricting any other
‘government entity or official’ from exchanging immigration status information” with immigration authorities.16 Chicago, 321 F. Supp. 3d at 868. Plaintiffs contend that this
command to state and local governments offends the Tenth Amendment’s anticommandeering
rule.
The Second Circuit has once before passed on the constitutionality of § 1373, in City of
New York v. United States, 179 F.3d 29 (2d Cir. 1999), nineteen years before Murphy was
decided. There, the court rejected the City’s facial challenge under the Tenth Amendment to
§ 1373 and the related provision 8 U.S.C. § 1644, which had conflicted with a mayoral executive
order that prohibited City employees from transmitting immigration information to federal immigration authorities specifically, except in certain circumstances.17 Id. at 31–32. Crucially,
the court reasoned that through these provisions,
Congress has not compelled state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government’s service. These Sections do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with [federal immigration authorities].
16 For purposes of this case, subsections (a) and (b) essentially overlap. Subsection (a) applies the prohibition on restricting government communication to any “government entity or official,” and subsection (b) applies a similar prohibition to any “person or agency.” 8 U.S.C. § 1373 (a)–(b). “Subsection (b) does not meaningfully expand the statute’s scope by including ‘person[s]’: Who but a government actor can restrict the activities of a government entity or official?” Chicago, 321 F. Supp. 3d at 868–69 (alteration in original). 17 The court expressly declined to opine on whether § 1373 “would survive a constitutional challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate municipal functions and that include federal immigration status.” City of New York, 179 F.3d at 37. The City’s current General Confidentiality Policy repealed and replaced the executive order at issue in City of New York. Exec. Order No. 34, § 1 (2003), Negrón Decl. Ex. A, Doc. 42-1.
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Id. at 35. The court thus drew a clear distinction “between invalid federal measures that seek to impress state and local governments into the administration of federal programs and valid federal measures that prohibit states from compelling passive resistance to particular federal programs,” and concluded that the challenged provisions fell into the latter category. Id.
This Court is, of course, required to follow Second Circuit precedent. But this Court is also duty bound to follow the U.S. Constitution as authoritatively interpreted by the Supreme Court. “When ‘a subsequent decision of the Supreme Court so undermines [Second Circuit precedent] that it will almost inevitably be overruled,’ the District Court is bound by the Supreme Court’s ruling and not by the Second Circuit’s prior decisions.” Austin v. United States, 280 F. Supp. 3d 567, 572 (S.D.N.Y. 2017) (alteration in original) (quoting United States v. Emmenegger, 329 F. Supp. 2d 416, 429 (S.D.N.Y. 2004)).
It is clear that City of New York cannot survive the Supreme Court’s decision in Murphy. See Chicago, 321 F. Supp. 3d at 873 (“Murphy’s holding deprives City of New York of its central support . . . .”); United States v. California, 314 F. Supp. 3d 1077, 1108 (E.D. Cal. 2018) (“[T]he Supreme Court’s holding in Murphy undercuts portions of the Second Circuit’s reasoning [in City of New York] and calls its conclusion into question.”). City of New York rested on the premise that § 1373 does not “affirmatively conscript[] states, localities, or their employees into the federal government’s service” or “directly compel states or localities to require or prohibit anything,” and rather merely “prohibit[s] state and local governmental entities or officials” from taking certain action. City of New York, 179 F.3d at 35. In other words, City of New York depended on “the distinction it draws between affirmative obligations and proscriptions.” Chicago, 321 F. Supp. 3d at 873. That is precisely the distinction that the Supreme Court in Murphy characterized as “empty.” Murphy, 138 S. Ct. at 1478. Whether Congress attempts to
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command affirmative action or impose a prohibition, “[t]he basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id. Accordingly, this Court is not bound by City of New York and must follow the Supreme Court’s clear direction in Murphy.
It necessarily follows that § 1373 is unconstitutional under the anticommandeering principles of the Tenth Amendment. Section 1373 “unequivocally dictates what a state legislature may and may not do.” Id. Section 1373’s prohibition on states and localities from restricting their officials from communicating with immigration authorities constitutes a “direct order[]” to states and localities in violation of the anticommandeering rule. Id.
The purposes served by the anticommandeering rule illustrate why it compels this result. First, § 1373 impinges on Plaintiffs’ sovereign authority and their citizens’ liberty to be regulated under their preferred state and local policies. Section 1373 requires Plaintiffs “to submit control of their own officials’ communications to the federal government and forego passing laws contrary to Section 1373.” San Francisco, 2018 WL 4859528, at *15. “[T]he statute prevents [Plaintiffs] from extricating [themselves] from federal immigration enforcement,” Chicago, 321 F. Supp. 3d at 870, and thereby denies Plaintiffs the “critical alternative” required by the Tenth Amendment to “decline to administer the federal program,” New York, 505 U.S. at 176–77.18
Second, § 1373 undermines political accountability because “the statute makes it difficult for citizens to distinguish between state and federal policy in the immigration context by barring states from adopting policies contrary to those preferred by the federal government.” Chicago,
18 See also Jessica Bulman-Pozen, Preemption and Commandeering Without Congress, 70 Stan. L. Rev. 2029, 2046 (2018) (“Because states operate through their officials, the power of the state to decline to carry out a federal program entails the power to forbid state officials from carrying out that federal program.”).
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321 F. Supp. 3d at 870. Faced with the “appearance of a uniform federal/state/local immigration enforcement policy indiscernible to [Plaintiffs’] residents,” those residents cannot properly credit or blame their state or local officials when their policies are compelled by the federal government. San Francisco, 2018 WL 4859528, at *15.
Third, § 1373 “shifts a portion of immigration enforcement costs onto the States.” Id. at *16. “The statute . . . forces states to allow their employees to participate in the federal scheme, shifting employee time—and thus corresponding costs—to federal initiatives and away from state priorities.” Chicago, 321 F. Supp. 3d at 870.
Defendants attempt to save § 1373 by claiming that it is a preemption provision, Defs.’ Mem. 38–39, “but it is no such thing,” Murphy, 138 S. Ct. at 1479. To validly preempt, the provision “must be best read as one that regulates private actors.” Id. A preemption provision “confers on private entities . . . a federal right to engage in certain conduct subject only to certain (federal) constraints.” Id. at 1480. Parroting back this language, Defendants claim that “Section 1373 confers upon entities or individuals a federal right to engage in certain conduct (the voluntary transmission of information to federal immigration authorities) subject only to certain federal constraints.” Defs.’ Mem. 39. Conspicuously absent from this recitation is the key word “private.” That is because by its own terms, § 1373 confers this purported federal right to transmit information only on “government entit[ies] or official[s].” 8 U.S.C. § 1373(a) (emphasis added); see San Francisco, 2018 WL 4859528, at *14 (“Section 1373 . . . does not regulate private actors or provide private actors with any additional rights in the [Immigration and Nationality Act]’s statutory scheme.”); Philadelphia, 309 F. Supp. 3d at 329 (“Given their plain language, neither Section 1373(a) nor Section 1373(b) can be best read as regulating private actors. On their face, they regulate state and local governmental entities and officials,
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which is fatal to their constitutionality under the Tenth Amendment.”). Defendants have failed to show that § 1373 regulates private actors at all, let alone that it is “best read as . . . regulat[ing] private actors.” Murphy, 138 S. Ct. at 1479.19
Next, Defendants attempt to fit § 1373 into a commandeering carve-out for statutes facilitating “the provision of information to the Federal Government,” relying on dicta in Printz, 521 U.S. at 918; Defs.’ Mem. 40. This argument is similarly unavailing. First, the Supreme Court has never actually held that such an exception to the anticommandeering doctrine exists. See Printz, 521 U.S. at 918 (“[Some statutes], which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case.”); see also id. at 936 (O’Connor, J., concurring) (“[T]he Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.”). Second, even if a commandeering exception for certain information reporting did exist, § 1373 would not qualify for it. “Section 1373 is more than just an information-sharing provision,” Chicago, 321 F. Supp. 3d at 872, because it prevents states and localities from doing anything that “in any way
19 Defendants’ reliance on Arizona v. United States, 567 U.S. 387 (2012), is misplaced. While the federal government has “broad, undoubted power over the subject of immigration and the status of aliens,” id. at 394, Arizona underscores that federal immigration laws may preempt because they “not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements,” Murphy, 138 S. Ct. at 1481 (emphasis added) (discussing Arizona). Here, Defendants have not shown that § 1373 imposes any obligations or confers any rights on aliens, let alone that it is “best read” as doing so. Id. at 1479. To the contrary, “[o]n [its] face, [§ 1373] regulate[s] state and local governmental entities and officials.” Philadelphia, 309 F. Supp. 3d at 329.
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restrict[s]” the flow of certain information to immigration authorities, 8 U.S.C. § 1373(a). As such, § 1373 prevents state and local policymakers from enacting a wide range of informationgovernance rules, Chicago, 321 F. Supp. 3d at 872, and even prevents them from “disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws,” Philadelphia, 280 F. Supp. 3d at 651. Section 1373 thus presents a graver intrusion into state sovereignty than merely requiring the reporting of certain data. San Francisco, 2018 WL 4859528, at *16; Chicago, 321 F. Supp. 3d at 872.20
The Court acknowledges Defendants’ argument that access to the information covered by § 1373 would assist them in their immigration enforcement duties.21 Defs.’ Mem. 40–41. However, a “federal need for state information does not automatically free the federal government of the sometimes laborious requirement to acquire that information by constitutional means.” Chicago, 321 F. Supp. 3d at 872. “[T]he federalist diffusion of power necessarily creates political barriers and inefficiencies. But these inefficiencies are part of federalism’s intended structure, not imperfections to be remedied by judicially-wrought consolidation of power.” Id.
20 Defendants also suggest that § 1373 is permissible because it “regulates the States as the owners of data bases,” as the Driver’s Privacy Protection Act of 1994 (“DPPA”) validly did in Reno v. Condon, 528 U.S. 141, 151 (2000). But it is clear that the DPPA was constitutional because it “applied equally to state and private actors.” Murphy, 138 S. Ct. at 1479 (discussing Reno); see Reno, 528 U.S. at 151 (“The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information—the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.”). Here, as previously discussed, § 1373 applies only to state actors. See Chicago, 321 F. Supp. 3d at 869 (“Section 1373 does not evenhandedly regulate activities in which both private and government actors engage. Thus, the saving grace of Reno does not apply here.”). 21 For instance, Defendants claim that this information assists federal officials in interrogating aliens as to their status, 8 U.S.C. § 1357(a)(1), removing certain deportable aliens, id. §§ 1227(a), 1228, or detaining certain deportable aliens when they are released from criminal custody, id. § 1226(c)(1).
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Finally, Defendants contend that the Tenth Amendment does not apply to the challenged conditions here because the Byrne JAG program is a voluntary federal grant, and “a perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.” South Dakota v. Dole, 483 U.S. 203, 210 (1987); Defs.’ Mem. 36–37. To be sure, Congress may offer funds conditioned on compliance with specified conditions to “induce the States to adopt policies that the Federal Government itself could not impose,” such as raising the state drinking age to 21. Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 537 (2012) (citing Dole, 483 U.S. at 205–06). But Defendants’ point misunderstands the nature of Plaintiffs’ challenge. Congress may impose “conditions legitimately placed on federal grants,” Dole, 483 U.S. at 210 (emphasis added), but Defendants—an agency and official of the Executive Branch administering a nondiscretionary formula grant—did not have statutory authority to legitimately place the three conditions here. With respect to the Compliance Condition, Defendants claimed statutory authority on the basis that § 1373 was an “applicable Federal law[]” requiring compliance under § 10153(a)(5)(D). “As an unconstitutional law, Section 1373 automatically drops out of the possible pool of ‘applicable Federal laws’ described in the Byrne JAG statute.” Chicago, 321 F. Supp. 3d at 875. “Thus, the Compliance Condition does not fail because it violates the anticommandeering doctrine. It fails because the statutory authority on which it depends sanctions only the imposition of ‘applicable’ federal laws; because Section 1373 no longer falls within that category, the authority for the Compliance Condition has been stripped away.” Id. at 876.
Accordingly, the Court holds that 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth
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Amendment.22 San Francisco, 2018 WL 4859528, at *17; Chicago, 321 F. Supp. 3d at 872; Philadelphia, 309 F. Supp. 3d at 331.
C. Separation of Powers In light of Defendants’ lack of authority to impose the three conditions on federal funding, Plaintiffs contend that the conditions violate the separation of powers. Pls.’ Mem. 41– 42. The Constitution vests Congress with the spending power to “provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. “[I]n exercising its spending power, Congress may offer funds to the States, and may condition those offers on compliance with specified conditions.” NFIB, 567 U.S. at 537. Congress may also “delegate such authority to the Executive Branch.” Chicago, 888 F.3d at 283. But for the reasons explained above, Congress has neither conditioned Byrne JAG funds on the three conditions here nor delegated the authority to impose these conditions to the Executive Branch. The Executive Branch does not have the power of the purse and “does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.” Id.; see also City & County of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018) (“Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to
22 This holding, of course, does not disturb § 1373 to the extent it regulates the activities of the federal government. See 8 U.S.C. § 1373(a)–(b) (imposing prohibitions on “Federal . . . government entit[ies] or official[s]”); see also id. § 1373(c) (requiring that federal immigration authorities respond to inquiries); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (“‘Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” (quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006))); Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1049 (9th Cir. 2007) (recognizing that “some of the provisions [of a statute] might be facially invalid, and [others] might not”).
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effectuate its own policy goals.”). The Byrne JAG statute provides “a firm commitment” of funding according to statutorily prescribed criteria, and the Executive Branch does not have “the seemingly limitless power to withhold funds” from grantees who refuse to accept its unilaterally imposed conditions. Train v. City of New York, 420 U.S. 35, 45–46 (1975).
The separation of powers acts as a check on tyranny and the concentration of power. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.” Chicago, 888 F.3d at 277. Because that is what Defendants attempted to do here by imposing the three challenged conditions, these conditions violate the separation of powers.23 Id.; San Francisco, 2018 WL 4859528, at *33; Philadelphia, 309 F. Supp. 3d at 321.
D. Arbitrary and Capricious Agency Action Aside from the three conditions’ statutory and constitutional flaws, Plaintiffs also contend that the conditions are arbitrary and capricious. Pls.’ Reply 24–28. Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, the agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). When an agency changes its policy, the agency
23 Because the Court concludes that the separation of powers prevents Defendants from imposing the three conditions at all, the Court need not consider Plaintiffs’ argument that the conditions are impermissibly unrelated or ambiguous under the Spending Clause. See Pls.’ Reply 38–43 & n.34.
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must “‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). Agency action is arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43.
In support of the decision to impose the three conditions, Defendants point to five documents in the administrative record: (1) a 2007 audit report by DOJ’s Office of the Inspector General on the cooperation of jurisdictions participating in the State Criminal Alien Assistance Program in the removal of criminal aliens (“2007 OIG Audit”), Holt Decl. Ex. 9, at AR-00001– 109, Doc. 33-9; (2) a May 2016 memorandum from DOJ’s Office of the Inspector General regarding alleged violations of § 1373 by grant recipients (“2016 OIG Memo”), Holt Decl. Ex. 9, at AR-00366–375; (3) a July 2016 memorandum from DOJ’s Office of Justice Programs responding to the aforementioned memo (“2016 OJP Memo”), Holt Decl. Ex. 10, at AR-00384– 391, Doc. 33-10; (4) a one-page “Backgrounder” on the FY 2017 Byrne JAG conditions distributed to the media “on background,” Holt Decl. Ex. 17, at AR-00993, Doc. 33-17; and (5) a July 2017 press release announcing the conditions that accompanied the Backgrounder (“Press Release”), Holt Decl. Ex. 17, at AR-00992.24 See Defs.’ Mem. 24–28.
24 Defendants also cite a declaration from Francisco Madrigal of Immigration and Customs Enforcement, Doc. 52, but because it was not part of the administrative record, the Court may not consider it for purposes of arbitrary-and-capricious review. See Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267, 279 (2d Cir. 2015) (stating that review is “limited to examining the administrative record” (quoting NRDC v. Muszynski, 268 F.3d 91, 97 (2d Cir. 2001))).
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Defendants claim that the 2007 OIG Audit described a high level of cooperation on immigration between the federal and state governments, which later deteriorated. The audit concluded that “[t]he 99 jurisdictions that responded to the questionnaire stated almost unanimously that there was no legislation or policy impeding the ability of local officers and agencies to communicate with ICE on immigration-enforcement matters,” and noted that “many state, county, and local law enforcement agencies are unwilling to initiate immigration enforcement but have policies that suggest they are willing to cooperate with ICE when they arrest individuals on state or local charges and learn that those individuals may be criminal aliens.” AR-00040–41, -00044.
The 2016 OIG Memo reported on information that “differs significantly from what OIG personnel found nearly 10 years ago during the earlier audit.” AR-00367 n.1. The memo stated that the 10 jurisdictions reviewed had laws or policies that “limited in some way the authority of the jurisdiction to take action with regard to ICE detainers,” and opined that certain policies “may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects.” AR-00369, -00373. The memo suggested that DOJ “consider,” among other things, “[r]equir[ing] grant applicants to provide certifications specifying the applicants’ compliance with Section 1373, along with documentation sufficient to support the certification.” AR-00374.
The 2016 OJP Memo concluded that “Section 1373 is an applicable federal law for the purposes of the [Byrne JAG] program,” and stated that OJP had provided guidance to “grantees and applicants with clear direction on the requirements of Section 1373.” AR-00384. The memo noted that “OJP already requires all applicants for any grant program electronically to
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acknowledge and accept” a document that “assures and certifies compliance with all applicable Federal statutes, regulations, policies, guidelines, and requirements.” AR-00385.
The Backgrounder announced that DOJ would impose the Compliance Condition, Access Condition, and Notice Condition on FY 2017 Byrne JAG grantees, stating that these conditions have “the goal of increasing information sharing between federal, state, and local law enforcement” so that “federal immigration authorities have the information they need to enforce the law and keep our communities safe.” AR-00993. The Backgrounder stated that some grantees “have adopted policies and regulations that frustrate the enforcement of federal immigration law, including by refusing to cooperate with federal immigration authorities in information sharing about illegal aliens who commit crimes,” and the new conditions will “prevent the counterproductive use of federal funds for policies that frustrate federal immigration enforcement.” Id. Similarly, the Press Release declared DOJ’s intent to “encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove criminals.” AR-00992.
Conspicuously absent from all of these documents is any discussion of the negative impacts that may result from imposing the conditions, and the record is devoid of any analysis that the perceived benefits outweigh these drawbacks. This absence is particularly glaring given that Assistant Attorney General Peter J. Kadzik, in a 2015 letter to Senator Richard Shelby, stated that withholding Byrne JAG funding to jurisdictions that do not meet immigration-related conditions “would have a significant, and unintended, impact on the underserved local populations who benefit from these programs, most of whom have no connection to immigration
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policy.”25 Holt Decl. Ex. 9, at AR-00113. Defendants did not consider whether the perceived benefits of the conditions outweighed these negative impacts on underserved local populations or whether such impacts could be mitigated. Even though Defendants were aware of these detrimental effects, they are not addressed anywhere in the administrative record. While one may well argue about the weight to be given to such evidence relative to other factors, it cannot simply be ignored. See El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1278 (D.C. Cir. 2005) (holding that agency action was arbitrary and capricious where the agency “failed adequately to address relevant evidence before it”); El Paso Elec. Co. v. FERC, 201 F.3d 667, 672 (5th Cir. 2000) (holding that the agency could not “rely on the potential advantages of [the action] . . . while ignoring the potential disadvantages”). In addition, the documents proffered by Defendants do not reflect that they in any way considered whether jurisdictions’ adherence to the conditions would undermine trust and cooperation between local communities and government, or the extent to which this would harm public welfare or frustrate local law enforcement, which is the very thing that the Byrne JAG program is supposed to assist. See Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 1996) (“Whether an agency has overlooked ‘an important aspect of the problem’ . . . turns on what a relevant substantive statute makes ‘important.’”).
Defendants “entirely failed to consider an important aspect of the problem” by failing to recognize how the conditions would harm local populations, undermine relationships between local communities and law enforcement, and “interfere[] with local policies that promote public
25 Assistant Attorney General Kadzik also noted that “[i]n many cases . . . the Department does not have the discretion to suspend funding at all,” because “many Department grant funds are formula-based, with the eligibility criteria (and related penalties, if any) set firmly by statute.” AR-00113.
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health and safety.” Philadelphia, 280 F. Supp. 3d at 625 (quoting State Farm, 463 U.S. at 43). Accordingly, the three challenged conditions are arbitrary and capricious.
E. Mandamus Relief The States seek mandamus relief compelling Defendants to reissue their award letters without the three unlawful conditions and to disburse their FY 2017 awards without regard to those conditions.26 Pls.’ Mem. 47–48. Under the Mandamus Act, the Court has jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is appropriate only where “(1) the plaintiffs have a right to have the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act requested, and (3) plaintiff has exhausted all other avenues of relief.” City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984). Defendants object to mandamus relief on the grounds that they are not legally required to issue the awards. Defs.’ Mem. 51. They point out that the Byrne JAG statute provides that the Attorney General “may” make grants for criminal justice programs. 34 U.S.C. § 10152(a)(1). The full text of this provision reads: (a) Grants authorized
(1) In general From amounts made available to carry out this part, the Attorney General may, in accordance with the formula established under section 10156 of this title, make grants to States and units of local government, for use by the State or unit of local government to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information
26 As a result of the preliminary injunction obtained by the U.S. Conference of Mayors, of which the City is a member, the City obtained its FY 2017 Byrne JAG award and intends to withdraw its request for mandamus relief, as it confirmed at oral argument. See City’s Oct. 23, 2018 Letter, Doc. 65; see also U.S. Conference of Mayors, slip op. at 2; Evanston, slip op. at 11.
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systems for criminal justice, including for any one or more of the following programs:
(A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams. Id. As noted above, the Byrne JAG grant is “a formula grant rather than a discretionary grant.” Chicago, 888 F.3d at 285. Thus, in the context of the structure of the statute and the nondiscretionary nature of the Byrne JAG formula grant, the single word “may” does not support the proposition that the Attorney General may withhold grants entirely. Rather, this provision means that the Attorney General may issue grants only for the statutorily prescribed purposes.27 The mandatory nature of this program is clear from § 10156, which provides that “the Attorney General shall . . . allocate” funds pursuant to the statutory formula. 34 U.S.C. § 10156(a)(1) (emphasis added); see San Francisco, 2018 WL 4859528, at *33 (“The Byrne JAG program is a formula grant that requires the Attorney General to disburse funds annually . . . .”); Philadelphia,
27 The subsection heading confirms that the provision is meant to list the particular “[g]rants authorized.” 34 U.S.C. § 10152(a); see Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (“Although section headings cannot limit the plain meaning of a statutory text, ‘they supply cues’ as to what Congress intended.” (citations omitted)).
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309 F. Supp. 3d at 343–44 (“[T]he JAG statute is a formula (rather than discretionary) grant,
[and] the JAG Program enabling statute is couched in mandatory language.” (citation omitted)).
Defendants also suggest that they are under no statutory deadline to issue grants. Defs.’
Mem. 51. However, an agency’s “unreasonable delay” may be “so egregious as to warrant
mandamus,” which the Court assesses in light of several principles:
(1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (citations
omitted).
As the district court in San Francisco concluded, “[e]ach factor supports mandamus relief
for the Byrne JAG grant”:
For the first two factors, delays beyond a year time frame preclude recipients from receiving their awards when they need them to support more immediate projects or programs. The Byrne JAG program is a formula grant that requires the Attorney General to disburse funds annually . . . . Factor three favors relief because the delay impacts human health and welfare, particularly [because] Byrne JAG funds aid [law enforcement programs]. Similarly, factor five supports relief because the human welfare and community safety [programs] that [Plaintiffs’] grant funding [supports] are at risk of being discontinued for lack of funding and are prejudiced by this delay. Expediting this matter, as discussed in factor four, would not prejudicially affect the federal government’s tangentially related interest in federal immigration enforcement. Finally, the sixth factor . . . would favor relief because DOJ is withholding grant funding based on conditions that violate the separation of powers.
San Francisco, 2018 WL 4859528, at *33–34 (citations omitted); see also Philadelphia, 309 F.
Supp. 3d at 343 (“[I]t bears emphasis that Congress specifically set the JAG Program as an
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annual award, and the DOJ’s delay has precluded the City from receiving the intended award at such time as the City can make timely use of it.”).
Accordingly, the Court will grant the States mandamus relief compelling Defendants to reissue their award letters without the three unlawful conditions and to disburse their FY 2017 awards without regard to those conditions.
F. Injunctive Relief Plaintiffs seek a permanent injunction to bar Defendants from imposing the three unlawful conditions. Pls.’ Mem. 42–47. A plaintiff seeking a permanent injunction must show “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Entergy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393, 422 (2d Cir. 2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010)). Each of these factors is satisfied here. As to the first two factors, Plaintiffs have demonstrated an irreparable “constitutional injury” that cannot be adequately compensated by monetary damages because Defendants have imposed on them unlawful conditions that violate the separation of powers. San Francisco, 2018 WL 4859528, at *30; see Scelsa v. City Univ. of N.Y., 806 F. Supp. 1126, 1135 (S.D.N.Y. 1992) (“[A] constitutional deprivation constitutes per se irreparable harm.”). Plaintiffs have also demonstrated that complying with the unlawful conditions would undermine trust between immigrant communities and local government, which would discourage individuals from reporting crimes, cooperating with investigations, and obtaining medical services, thereby harming public safety and welfare. E.g., Pls.’ 56.1 ¶¶ 184, 194. “Trust once lost is not easily
39

Case 1:18-cv-06471-ER Document 114 Filed 11/30/18 Page 40 of 43
restored, and as such, this is an irreparable harm for which there is no adequate remedy at law.” Chicago, 321 F. Supp. 3d at 877–78. Furthermore, “the Hobson’s choice that now confronts [Plaintiffs]—whether to suffer this injury or else decline much-needed grant funds—is not a choice at all and is itself sufficient to establish irreparable harm.” Id. at 878.
As to the third factor, the balance of hardships weighs in favor of Plaintiffs. As just explained, the unlawful conditions impose an irreparable injury on Plaintiffs and encumber more than $29 million in grant funds that Plaintiffs would otherwise use for law enforcement and public safety purposes. On the other side of the scale, Defendants “suffer[] little hardship here because the injunction does not strip away any option [they] could otherwise exercise” in pursuit of their claimed goal of increasing cooperation on immigration matters. Id. at 879. “Though the Attorney General has many tools at his disposal to increase such local cooperation, conditioning the Byrne JAG grant as he has here is not one of them.” Id.
Finally, an injunction will serve the public interest in the lawful administration of government consistent with the separation of powers. “By enjoining the unlawful Conditions, the Court acts as a check on the executive’s encroachment of congressional power and thus serves the public interest by constraining the Attorney General’s authority in order to preserve the Byrne JAG program as Congress envisioned.” Id. Accordingly, Plaintiffs are entitled to a permanent injunction against the three challenged conditions.
A question remains as to the scope of the injunction. Plaintiffs seek a nationwide injunction barring Defendants from imposing the conditions on any jurisdiction, contending that unlawful agency action must be completely set aside and forcing other jurisdictions to relitigate issues that are not fact dependent would be inefficient. Pls.’ Mem. 46–47. Defendants ask that injunctive relief be limited to the parties before the Court, arguing that a broader scope is
40

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unnecessary to accord relief to the parties and would short circuit the percolation of these issues in courts around the country. Defs.’ Mem. 52–55.
“Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’” Hills v. Gautreaux, 425 U.S. 284, 293–94 (1976) (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)). Although “the scope of a district court’s equitable powers to remedy past wrongs is broad,” Swann v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971), “‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ before the court,” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Thus, “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown,” but “an injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987) (emphasis omitted).
Here, Plaintiffs have not made a sufficient showing of “nationwide impact” demonstrating that a nationwide injunction is necessary to completely accord relief to them. City & County of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018). Moreover, the Court notes that of the courts handling the Byrne JAG litigation around the country, only one has issued a nationwide injunction, which was briefly affirmed by the Seventh Circuit, only to be stayed as to the nationwide scope pending en banc review. See generally City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *1 (7th Cir. Aug. 10, 2018). Since then, each district court to consider a nationwide injunction against the Byrne JAG conditions has stayed
41

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the injunction’s nationwide scope. See San Francisco, 2018 WL 4859528, at *30; Chicago, 321
F. Supp. 3d at 882. At this juncture, the Court will similarly limit injunctive relief to the parties
before the Court and their political subdivisions.28
IV. Conclusion
Plaintiffs’ motion for partial summary judgment is GRANTED, and Defendants’ motion
for partial summary judgment or in the alternative to dismiss is DENIED. Specifically, the Court
hereby ORDERS as follows:
1. The Notice, Access, and Compliance Conditions are ultra vires and not in accordance with law under the APA. Summary judgment is GRANTED to the States on their Counts II and III and to the City on its Count II.
2. 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Summary judgment is GRANTED to the States on their Count V and to the City on its Counts V and XI.
3. The Notice, Access, and Compliance Conditions violate the constitutional separation of powers. Summary judgment is GRANTED to the States on their Count I and to the City on its Count I. The motions for summary judgment with respect to the City’s Count IV (violation of the Spending Clause) are DENIED as moot.
4. The Notice, Access, and Compliance Conditions are arbitrary and capricious under the APA. Summary judgment is GRANTED to the States on their Count IV and to the City on its Count III.
5. Defendants are MANDATED to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance,
28 At oral argument, the States requested that, to the extent the Court limits injunctive relief to the parties, such relief also extend to the States’ political subdivisions, which may be direct grantees or subgrantees of the Byrne JAG program. The political subdivisions experience the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions. Accordingly, the Court agrees that in order to accord complete relief to the States, an injunction must protect both the States and their political subdivisions. See California ex rel. Becerra v. Sessions, No. 17 Civ. 04701 (WHO), 2018 WL 6069940, at *1 (N.D. Cal. Nov. 20, 2018) (enjoining the challenged conditions from being imposed on “any California state entity” or “any California political subdivision”).
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 Case 1:18-cv-06471-ER Document 122 Filed 01/04/19 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DOCUMENT
ELECTRONlCAlLY FILED ,DOC# DATEF~I~LE~D~:-fr,7 / 7f-,7 / ~~.0~1~9-..~-.~.

STATES OF NEW YORK, CONNECTICUT, NEW JERSEY, RHODE ISLAND, and WASHINGTON, and COMMONWEALTHS OF MASSACHUSETTS and VIRGINIA,
Plaintiffs,
-against-
UNITED STATES DEPARTMENT OF JUSTICE, and MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States,
Defendants.

ORDER 18 Civ. 6471 (ER)

CITY OF NEW YORK,
Plaintiff,
-against-
MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE,
Defendants.

18 Civ. 6474 (ER)

Ramos, D .J.: On November 30, 2018, the Court issued an Opinion and Order granting Plaintiffs'
motion for partial summary judgment, denying Defendants' motion for partial summary judgment or in the alternative to dismiss, and granting declaratory, mandamus, and injunctive relief. Doc. 114, at 42--43, No. 18 Civ. 6471; Doc. 81, at 42--43, No. 18 Civ. 6474. Pending before the Court are the parties' requests to modify the mandamus relief ordered by the Court in

Case 1:18-cv-06471-ER Document 122 Filed 01/04/19 Page 2 of 3
Paragraph 5 of the "Conclusion" section of its Opinion and Order. Docs. 117, 119, 121, No. 18 Civ. 6471; Docs. 82, 85, 86, No. 18 Civ. 6474.
Defendants request that the mandamus reliefbe modified to remove the requirement that Defendants issue the FY 2017 Byrne JAG award documents without the text of the Notice, Access, or Compliance Conditions, and instead require Defendants to issue the awards without enforcement of those conditions, which are already enjoined pursuant to Paragraph 6. Plaintiffs do not oppose this request, but request a further modification clarifying that acceptance of the awards will not be construed as acceptance of the enjoined conditions. Defendants likewise do not oppose this additional modification. The Court agrees with the parties' proposed modifications and will order them accordingly. See California ex rel. Becerra v. Sessions, No. 17 Civ. 04701 (WHO), 2018 WL 6069940, at *2 (N.D. Cal. Nov. 20, 2018).
Plaintiffs also request that Defendants inform them of the expected timing of the disbursement ofthe Byrne JAG funds. Defendants respond that, in light of the lapse of appropriations to the Department of Justice on December 21, 2018, Defendants cannot estimate when Plaintiffs' Byrne JAG funds will be disbursed until the appropriations are restored and Plaintiffs return their executed award letters. The Court will direct Defendants to provide such an estimate upon the occurrence of these events.
Accordingly, Paragraph 5 of the "Conclusion" section of the Court's Opinion and Order is hereby modified to read as follows: "Defendants are MANDATED to issue the States' FY 2017 Byrne JAG award documents, and upon acceptance by those jurisdictions, to disburse those awards as they would in the ordinary course but without regard to the Notice, Access, or Compliance Conditions. Acceptance of the FY 2017 awards shall not be construed as acceptance of the enjoined conditions."
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Case 1:18-cv-06471-ER Document 122 Filed 01/04/19 Page 3 of 3

Upon restoration of appropriations to the Department of Justice and Plaintiffs' acceptance

of the award documents, Defendants are directed to inform Plaintiffs of the expected timing of

the disbursement of their FY 2017 Byrne JAG funds. The Court expects that, upon the

occurrence of these events, Defendants will disburse the funds without further delay.

The Clerk of the Court is respectfully directed to terminate the motions, Doc. 117 in No.

18 Civ. 6471, and Doc. 82 in No. 18 Civ. 6474.

It is SO ORDERED.

Dated: January 4, 2019 New York, New York

~~ .
Edgardo Ramos, U.S.D.J.

3

 
 Case 19-267, Document 193-1, 02/26/2020, 2787114, Page1 of 77
19‐267 (L) New York et al. v. United States Dep’t of Justice et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
Nos. 19‐267(L); 19‐275(con)
STATE OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW JERSEY, STATE OF WASHINGTON, COMMONWEALTH OF MASSACHUSETTS,
COMMONWEALTH OF VIRGINIA, STATE OF RHODE ISLAND, CITY OF NEW YORK,
Plaintiffs‐Appellees,
v.
UNITED STATES DEPARTMENT OF JUSTICE, WILLIAM P. BARR, in his official capacity as Attorney General of the United States, Defendants‐Appellants.
On Appeal from the United States District Court for the Southern District of New York
ARGUED: JUNE 18, 2019 DECIDED: FEBRUARY 26, 2020
_____ Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
_____

Case 19-267, Document 193-1, 02/26/2020, 2787114, Page2 of 77
On appeal from a judgment entered in the United States District Court for the Southern District of New York (Edgardo Ramos, Judge), which (1) mandates that defendants release withheld 2017 Byrne Program Criminal Justice Assistance funds to plaintiffs, and (2) enjoins defendants from imposing certain immigration‐related conditions on such grants, defendants argue that the district court erred in holding that the challenged conditions violate the Administrative Procedure Act and the United States Constitution.
REVERSED AND REMANDED.
______________
BRAD HINSHELWOOD (Mark B. Stern, Daniel Tenny, on the brief) for JOSEPH H. HUNT, ASSISTANT ATTORNEY GENERAL, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants‐Appellants.
ANISHA S. DASGUPTA, for LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, New York, New York (Barbara D. Underwood, Eric R. Haren, Linda Fang, New York State Office of the Attorney General, New York, New York; Mark Francis Kohler, Michael Skold, for William Tong, Attorney General of the State of Connecticut, Hartford, Connecticut; Jeremy Feigenbaum, for Gurbir S. Grewal, Attorney General of the State of New Jersey, Trenton, New Jersey; Luke Alexander Eaton, for Robert W. Ferguson, Attorney General of the State of Washington, Olympia, Washington; David Urena for Maura Healey, Attorney General of the Commonwealth of Massachusetts, Boston, Massachusetts; Victoria Pearson, for Mark R. Herring,
2

Case 19-267, Document 193-1, 02/26/2020, 2787114, Page3 of 77
Attorney General of the Commonwealth of Virginia, Richmond, Virginia; Michael W. Field, for Peter F. Neronha, Attorney General of the State of Rhode Island, Providence, Rhode Island, on the brief) for Plaintiffs‐ Appellees the States of New York, Connecticut, New Jersey, Washington, Rhode Island, and the Commonwealths of Massachusetts and Virginia.
Jamison Davies, Richard Dearing, Devin Slack, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York for Plaintiff‐Appellee the City of New York.
Adam Lurie, Caitlin Potratz Metcalf, Linklaters LLP, Washington, D.C., Counsel for Amicus Curiae American Jewish Committee.
SPENCER E. AMDUR, Lee Gelernt, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Christopher Dunn, New York Civil Liberties Union, New York, New York; Mark Fleming, Heartland Alliance, Chicago, Illinois; Cody H. Wofsy, American Civil Liberties Union of California Immigrants’ Rights Project, San Francisco, California; Counsel for Amici Curiae American Civil Liberties Union, New York Civil Liberties Union, National Immigrant Justice Center, National Immigration Law Center, Immigrant Legal Resource Center, Asian Americans Advancing Justice— Asian Law Caucus, Washington Defender Association, and the New Orleans Workers’ Center for Racial Justice.
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REENA RAGGI, Circuit Judge:
INTRODUCTION
The principal legal question presented in this appeal is whether the federal government may deny grants of money to State and local governments that would be eligible for such awards but for their refusal to comply with three immigration‐related conditions imposed by the Attorney General of the United States. Those conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities, see 8 U.S.C. § 1373; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens.
The case implicates several of the most divisive issues confronting our country and, consequently, filling daily news headlines: national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of States and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government.
Intertwined with these issues is a foundational legal question: how, if at all, should federal, State, and local governments coordinate in carrying out the nation’s immigration policy? There is also a corollary question: to what extent may States and localities seeking federal grant money to facilitate the enforcement of their own laws
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adopt policies to extricate themselves from, hinder, or even frustrate the enforcement of federal immigration laws?
At its core, this appeal presents questions of statutory construction. In proceedings below, the United States District Court for the Southern District of New York (Edgardo Ramos, Judge) determined that the Attorney General was not statutorily authorized to impose the challenged conditions and, therefore, enjoined their application. See New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). The thoughtful opinion of the district court requires us to examine the authorization question in detail. For reasons explained in this opinion, we conclude that the plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions.
In concluding otherwise, the district court relied on, among other things, an opinion of the Seventh Circuit in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018). While mindful of the respect owed to our sister circuits, we cannot agree that the federal government must be enjoined from imposing the challenged conditions on the federal grants here at issue. These conditions help the federal government enforce national immigration laws and policies supported by successive Democratic and Republican administrations. But more to the authorization point, they ensure that applicants satisfy particular statutory grant requirements imposed by Congress and subject to Attorney General oversight.
Nor can we agree with the district court that the challenged conditions impermissibly intrude on powers reserved to the States.
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See U.S. CONST. Amend. X. As the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains “broad,” Arizona v. United States, 567 U.S. 387, 394 (2012), and “preeminent,” power, Toll v. Moreno, 458 U.S. 1, 10 (1982), which is codified in an “extensive and complex” statutory scheme, Arizona v. United States, 567 U.S. at 395. Thus, at the same time that the Supreme Court has acknowledged States’ “understandable frustrations with the problems caused by illegal immigration,” it has made clear that a “State may not pursue policies that undermine federal law.” Id. at 416. As Chief Justice John Marshall wrote over 200 years ago, “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” McCulloch v. Maryland, 17 U.S. 316, 436 (1819). This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause. See U.S. CONST. art. I, § 8.
BACKGROUND
Invoking this court’s interlocutory jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), defendants the United States Department of Justice and the Attorney General of the United States (hereinafter, collectively, “DOJ”) appeal from an award of partial summary judgment entered on November 30, 2018. See New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). That judgment grants
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Case 19-267, Document 193-1, 02/26/2020, 2787114, Page7 of 77
plaintiffs, the States of New York, Connecticut, New Jersey, Rhode Island, and Washington, the Commonwealths of Massachusetts and Virginia (hereinafter, collectively, the “States”), and the City of New York (the “City”), injunctive relief from three immigration‐related conditions imposed by DOJ on the receipt of 2017 Byrne Program Criminal Justice Assistance grants (“Byrne grants”). Those conditions required 2017 Byrne grant applicants (1) to certify their willingness to comply with 8 U.S.C. § 1373, which law precludes government entities and officials from prohibiting or restricting the sharing of citizenship or alien‐status information with federal immigration authorities (the “Certification Condition”); (2) to provide assurance that, upon written request of federal immigration authorities, grant recipients would provide notice of an incarcerated alien’s scheduled release date (the “Notice Condition”); and (3) to certify that grant recipients would afford federal authorities access to State‐ incarcerated suspected aliens in order for those authorities to determine the aliens’ right to remain in the United States (the “Access Condition”).1 The district court’s judgment not only enjoins DOJ from enforcing these three requirements as to any of plaintiffs’ 2017 Byrne grants (which DOJ has otherwise awarded), but also mandates that DOJ release the withheld 2017 funds to plaintiffs without regard to the challenged conditions. See id. at 245–46; App. at 45 (modifying mandate).
1 Defendants have imposed still further conditions on 2018 Byrne grants, which plaintiffs also challenge before the district court. Because no judgment has yet been entered on that part of plaintiffs’ case, we do not address plaintiffs’ challenge to those conditions on this appeal.
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Three of our sister circuits have now upheld injunctions precluding enforcement of some or all of the challenged conditions as to other jurisdictions applying for Byrne grants. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access Conditions); City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019) (ruling as to all three conditions); City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (ruling as to Notice and Access Conditions), reh’g en banc granted in part, opinion vacated in part, No. 17‐2991, 2018 WL 4268817 (7th Cir. June 4, 2018) (vacating nation‐wide injunction), reh’g grant vacated, No. 17‐2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). The district court relied on the Seventh Circuit decision in entering the challenged judgment, see New York v. Dep’t of Justice, 343 F. Supp. 3d at 226–45; the later Third and Ninth Circuit decisions were not then available to it.
In urging reversal, DOJ argues that the district court erred in holding that the challenged conditions violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and the Constitution. As to the APA, DOJ faults the district court for holding that (1) the Attorney General (and his designee, the Assistant Attorney General (“AAG”)) lacked the requisite statutory authority to impose the challenged conditions; and (2) the conditions are, in any event, arbitrary and capricious because DOJ failed to consider their negative ramifications for applicants. As to the Constitution, DOJ argues that (1) the district court having found the conditions invalid under the APA, there was no need for it to consider their constitutionality; and (2) the challenged conditions do not raise either the separation‐of‐ powers or Tenth Amendment concerns identified by the district court.
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For reasons explained herein, we conclude that the challenged conditions do not violate either the APA or the Constitution. We therefore reverse the challenged judgment in favor of plaintiffs and remand the case to the district court for further proceedings consistent with this opinion.
I. The Byrne Justice Assistance Grant Program The Edward Byrne Memorial Justice Assistance Grant Program
(“Byrne Program”), codified at 34 U.S.C. §§ 10151–10158, is the vehicle through which Congress annually provides more than $250 million in federal funding for State and local criminal justice efforts.2 The Byrne Program was created in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109‐162, § 1111, 119 Stat. 2960, 3094 (2006). That Act amended provisions of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90‐351, tit. I, 82 Stat. 197, which itself had
2 The Byrne Program is named for New York City Police Officer Edward Byrne who, at age 22, was shot to death while guarding the home of a Guyanese immigrant cooperating with authorities investigating drug trafficking. The case is well known in this circuit, where five persons were convicted in the Eastern District of New York for their roles in Byrne’s murder. Among these was Howard “Pappy” Mason, a drug dealer who, from his New York State prison cell, ordered subordinates to kill a police officer in retaliation for Mason’s own incarceration. See Joseph P. Fried, Officer Guarding Drug Witness Is Slain, N.Y. Times, Feb. 27, 1988, at A1, 34; Leonard Buder, Trial Is By a Defendant In Police Slaying, N.Y. Times, Nov. 29, 1989, at B5.
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provided federal funding for State and local law enforcement initiatives.
The Byrne Program is a formula grant program, i.e., Congress appropriates a fixed amount of funding for the program and specifies “how the funds will be allocated among the eligible recipients, as well as the method by which an applicant must demonstrate its eligibility for that funding.” Office of Justice Programs, Grant Process Overview.3 The Byrne Program’s statutory formula awards the States 50% of allocated funds based on their relative populations, see 34 U.S.C. § 10156(a)(1)(A), and the other 50% based on their relative rates of violent crime, see id. § 10156(a)(1)(B). The formula further provides that, of total Byrne funds awarded to a State, the State itself keeps 60%, with the remaining 40% percent allocated to local governments within the State. See id. § 10156(b).
Congress affords States and localities wide discretion in using Byrne grants. While awarded funds cannot substitute for a state’s own expenditures, see id. § 10153(a)(1), Byrne grants may be used to support such diverse needs as “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems,” pertaining to a broad range of criminal justice initiatives:
(A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections
3 Available at http://go.usa.gov/xPmkA (last visited Feb. 24, 2020).
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programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams,
id. § 10152(a). As Congress has explained, its intent was thus to afford States and localities the “flexibility to spend money for programs that work for them rather than to impose a ‘one‐size fits all’ solution.” H.R. REP. NO. 109‐233, at 89 (2005), as reprinted in 2005 U.S.C.C.A.N. 1636, 1640.
Plaintiffs have received Byrne grants each year since that program’s inception. They have used these grants for a variety of purposes, including, but not limited to, supporting various investigative task forces, funding both prosecutors’ and public defenders’ offices, paying 911 operators, improving their criminal records systems and forensic laboratories, identifying and mentoring criminally at‐risk youth and young adults, operating drug courts and diversion programs for nonviolent felony offenders, mitigating gang violence in prison, and funding prisoner re‐entry services.
While the Byrne fund‐distribution formula is statutorily mandated, and while Byrne applicants can use such funds for almost any law‐enforcement‐related purpose, no State or locality is automatically entitled to receive a Byrne grant. Rather, a jurisdiction seeking Byrne funding must submit an application satisfying a host of statutory requirements. For example, a jurisdiction is statutorily
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required to make its Byrne Program application public and to afford an opportunity for public comment before submitting its final application to the Attorney General. See 34 U.S.C. § 10153(a)(3)(A)– (B). Also, a Byrne grant application must include a “comprehensive Statewide plan” detailing, as specified in § 10153(a)(6)(A)–(E), how awarded grants will be used to improve the jurisdiction’s criminal justice system. A Byrne grant applicant must satisfy these, and all other statutory requirements, “in such form as the Attorney General may require,” id. § 10153(a), and subject to such “rules” as the Attorney General “shall issue” to carry out the program, id. § 10155.4
Three statutory requirements for Byrne grants are particularly relevant to this appeal. First, an applicant must certify that it “will comply with all provisions of this part [i.e., part of chapter pertaining to Byrne Program] and all other applicable Federal laws.” Id. § 10153(a)(5)(D). Second, an applicant must provide assurance that it “shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.” Id. § 10153(a)(4). Third, an applicant must certify
4 The APA defines the term “rule” broadly to mean “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing organization, procedure, or practice requirements of an agency . . . .” 5 U.S.C. § 551(4); see Safari Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017) (recognizing that APA defines “rule” “very broadly” (internal quotation marks omitted)). At the same time, the APA exempts rules pertaining to grants from the notice‐and‐comment procedures generally attending federal rule‐making. See 5 U.S.C. § 553(a)(2); City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1087 (9th Cir. 1989); cf. Richard B. Cappalli, Rights and Remedies Under Federal Grants 247 (1979) (observing that “a significant number of formula [grant] programs contain no mention of Due Process rights”).
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that “there has been appropriate coordination with affected agencies.” Id. § 10153(a)(5)(C).
The Attorney General’s authority to disapprove Byrne applications not satisfying the program’s statutory requirements is implicit in the statutory provision tempering that authority with a required opportunity for correction: the Attorney General “shall not finally disapprove” a deficient application “without first affording the applicant reasonable notice of any deficiencies in the application and opportunity for correction and reconsideration.” Id. § 10154. The authority to deny funds is further evident in Congress’s instruction as to how appropriated funds are to be distributed if the Attorney General determines “that a State will be unable to qualify or receive [Byrne Program] funds”: that State’s allocation under the statutory formula “shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State,” giving priority to those with the highest reported number of violent crimes. Id. § 10156(f). Such denial authority is, moreover, consistent with the discretion Congress has afforded the Attorney General to waive certain statutory program requirements, see id. § 10152(c)(2), and to develop “guidelines” for the statutorily required “program assessment component” of every Byrne grant that is awarded, id. § 10152(c)(1).
The Attorney General is statutorily authorized to delegate the “powers and functions” thus vested in him by Title 34 to the AAG responsible for DOJ’s Office of Justice Programs, which office now administers the Byrne Program. Id. § 10102(a)(6). Congress has made
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plain that the powers and functions that may be so delegated “includ[e] placing special conditions on all grants, and determining priority purposes for formula grants.” Id.
II. The Challenged Immigration‐Related Conditions
In soliciting 2017 applications for Byrne Program grants, then‐ Attorney General Jefferson B. Sessions III, on July 25, 2017, announced the three immigration‐related conditions at issue in this case.
First, the Certification Condition requires a Byrne grant applicant to execute a “Certification of Compliance with 8 U.S.C. § 1373.” App. at 288, ¶¶ 52–53. That statute, which the Attorney General identified as an “applicable Federal law” for purposes of the certification requirement of 34 U.S.C. § 10153(a)(5)(D), see supra at 12, states, in pertinent part, as follows:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service5 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
5 The Immigration and Naturalization Service, which had been a part of DOJ, see 8 U.S.C. § 1101(a)(34), was disbanded in 2002, see 6 U.S.C. § 291, and its duties divided among three services operating within the new cabinet‐level Department of Homeland Security: the United States Citizenship and Immigration Service, the Immigration and Customs Enforcement Service, and the Customs and Border Protection Service, see id. §§ 111, 211, 251–52, 271.
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18 U.S.C. § 1373(a). The Certification Condition thus requires that,
with respect to the “program or activity” funded in whole or part under this award (including any such “program or activity” of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, ‐agency, or ‐official may prohibit or in any way restrict—(1) any government entity or ‐official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. § 1373(a); or (2) a government entity or ‐agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. § 1373(b).
App. at 288–89, ¶¶ 52–53.
Second, the Notice Condition requires Byrne grant recipients to have in place throughout the grant period a law, rule, or policy for informing federal authorities, upon request, of the scheduled release date of an alien in the recipient’s custody. It states that,
as of the date the recipient accepts [a Byrne] award, and throughout the remainder of the period of performance for the award— . . . A State statute, or a State rule, ‐regulation, ‐policy, or ‐practice, must be in place that is designed to ensure that, when a State (or State‐contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will
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honor such request and—as early as practicable . . .— provide the requested notice to DHS.
Id. at 291, ¶ 55(1)(B).
Finally, the Access Condition requires grant recipients to have a law, rule, or policy in place allowing federal authorities to meet with incarcerated aliens in order to inquire about their rights to remain in the United States. It states that,
as of the date the recipient accepts [a Byrne] award, and throughout the remainder of the period of performance for the award— . . . A State statute, or a State rule, ‐regulation, ‐policy, or ‐practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law . . . are given . . . access [to] any State (or State‐ contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ rights to be or remain in the United States.
Id. at 291, ¶ 55(1)(A).
In announcing these conditions, Attorney General Sessions stated an intent to “increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.” Press Release, Attorney General Sessions Announces Immigration Compliance Requirements
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for Edward Byrne Memorial Justice Assistance Programs (July 25, 2017).6 The Attorney General was specifically critical of “[s]o‐called ‘sanctuary’ policies [that] make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.” Id. He stated that DOJ needed to “encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove [alien] criminals.” Thus, “[f]rom now on,” DOJ would “only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours[’] notice before they release an illegal alien wanted by federal authorities.” Id.7
III. Title 8 U.S.C. § 1373 Because an understanding of how 8 U.S.C. § 1373 became the
focus of the Certification Condition is useful to a consideration of plaintiffs’ challenge to that condition, we set forth that history here.
Section 1373 was enacted in 1996, when Congress took notice that certain states and localities were restricting their officials’ cooperation with federal immigration authorities. See generally H.R. REP. NO. 104‐725, at 391 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2779 (noting that various state statutes and local
6 Available at https://www.justice.gov/opa/pr/attorney‐general‐sessions‐ announces‐immigration‐compliance‐requirements‐edward‐byrne‐memorial. 7 As indicated in the text quoted supra at 15–16, the actual Notice Condition sets no firm 48‐hour deadline but, rather, requires notification “as early as practicable.”
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laws prevent disclosure of individuals’ immigration status to federal officials).8
Members of the Senate Judiciary Committee voiced particular concern with granting federal funds to “State and local governments passing ordinances and rules which prohibit State and local agencies from cooperating or communicating with INS.” See The Impact of Immigration on the United States and Proposals to Reform U.S. Immigration Laws: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the Comm. on the Judiciary, 103d Cong. 45 (1994) [hereinafter Immigration Reform Hearings] (statement of Sen. Simpson, R. Wyo. (“I believe cooperation has to be [a] condition[] for any Federal reimbursement. In other words, you are not going to get bucks from the Federal Government if the local governments can’t communicate with the INS about illegal immigration and those who are involved in it.”)); see also id. at 26 (statement of Sen. Feinstein, D.
8 This conference report specifically pertains to 8 U.S.C. § 1644, a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104‐193), which states that, “notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” As this court has recognized, § 1373, enacted a month after § 1644 as part of the Immigration Reform Act, “expands” on the earlier statute insofar as it provides generally that no Federal, State, or local government entity may restrict another government entity from sending to, or receiving from INS, any immigration status information. See City of New York v. United States, 179 F.3d 29, 32 (2d Cir. 1999) (rejecting constitutional challenge to both laws). Thus, the conference report pertaining to § 1644 is relevant to § 1373.
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Cal. (signaling that she would not support providing immigration “impact aid” to “States and local governments that declined to cooperate in enforcement of [federal immigration] laws”));9 id. (statement of Committee Chairman Sen. Kennedy, D. Mass. (acknowledging concerns of some mayors that cooperation with federal immigration authorities could be counterproductive to local law enforcement efforts, and observing that federal aid had to be provided “in ways that are going to get the[ir immigration] cooperation but also, . . . [allow them] to deal with . . . violence and gangs and drug problems and the rest. We are looking for balance . . . .”)).
In its report accompanying the proposed legislation that would become § 1373, the Senate Judiciary Committee expressly recognized that the “acquisition, maintenance, and exchange of
9 Senator Feinstein’s comment was made in signaling agreement with a recommendation of the Commission on Immigration Reform, a body created by Congress in 1990 to “evaluate the impact of” changes in federal immigration law. The relevant exchange is as follows:
Commissioner Teitelbaum: There is a further condition [on recommended immigration impact aid] that was unanimously supported by the Commission . . . [and] it should be highlighted, and that is a requirement for cooperation by State and local governments with Federal authorities to enforce the immigration laws of the United States. I don’t think the Commission would support the notion of impact aid for States and local governments that declined to cooperate in enforcement of such laws.
Senator Feinstein: Nor would I, sir, so I agree with you.
Immigration Reform Hearings, 103d Cong. at 26.
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immigration‐related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act.” S. REP. NO. 104‐249, at 19–20 (1996) (quoted in City of New York v. United States, 179 F.3d at 32–33). Thus, in enacting § 1373, as in enacting § 1644, Congress sought “to give State and local officials the authority to communicate with [federal immigration authorities] regarding the presence, whereabouts, or activities of illegal aliens,” notwithstanding any local laws to the contrary. H.R. REP. NO. 104‐ 725, at 383 (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. at 2771 (quoted in City of New York v. United States, 179 F.3d at 32).
In the twenty years that followed, political debates over federal immigration policies grew more contentious, and the number of State and local jurisdictions limiting official cooperation with federal immigration authorities increased. In February 2016, Representative John Culberson (R. Tex.), then the Chairman of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, forwarded to Attorney General Loretta E. Lynch a report by the Center for Immigration Studies, which concluded that “over 300 ‘sanctuary’ jurisdictions [were] refus[ing] to comply with [federal immigration] detainers or [were] otherwise imped[ing] information sharing with federal immigration officials.” App. at
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134.10 Representative Culberson asked the Attorney General to investigate whether DOJ “grant recipients were complying with federal law, particularly . . . § 1373.” Id. (emphasis added).
The ensuing investigation was conducted by DOJ’s Inspector General (“IG”) who, in May 2016, reported a significant, decade‐long decline in state and local cooperation with federal immigration authorities. He reported that a 2007 congressionally mandated IG audit of seven jurisdictions then receiving federal funds pursuant to the State Criminal Alien Assistance Program (“SCAAP”) revealed that all but one (San Francisco) were accepting federal detainers and providing federal authorities with timely notice of aliens’ release dates. See App. at 134–35 n.1. By contrast, the IG’s 2016 examination of ten jurisdictions receiving a combined 63% of relevant DOJ grants,11
10 An immigration detainer is the instrument by which federal authorities formally “advise another law enforcement agency that [they] seek[] custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). Supported by an administrative warrant issued on a showing of probable cause, the detainer generally requests the agency then having custody of the alien to provide federal authorities with advance notice of the alien’s intended release date or to detain the alien for a brief time to allow federal authorities to assume custody. See U.S. Immigration and Customs Enf’t, Fiscal Year 2017 ICE Enforcement and Removal Operations Report 7–8 (2017); see also Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019).
11 The IG reviewed ten jurisdictions receiving federal grants administered by the DOJ’s Office of Justice Programs (e.g., Byrne Program grants) and/or the DOJ’s Office of Violence Against Women: “the States of Connecticut and California; City of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami‐Dade
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revealed that “all . . . had ordinances or policies that placed limits on cooperation” with federal immigration authorities. Id.; see id. at 137, 145–49 (detailing limitations found).12 The IG observed that insofar
County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New York, New York; and Philadelphia, Pennsylvania.” App. at 136.
12 To illustrate with some examples, the IG reported that Cook County, Illinois (Chicago), prohibited its on‐duty employees from communicating with federal immigration authorities “regarding individuals’ incarceration status or release dates.” Id. at 140 (internal quotation marks omitted). Similarly, Orleans Parish, Louisiana (New Orleans) prohibited its officials from “provid[ing] information on an inmate’s release date” to federal authorities. Id. By executive order, Philadelphia employees were prohibited from providing federal authorities with release date information about the subject of an immigration detainer unless that person was incarcerated “for a first or second degree felony involving violence and the detainer is supported by a judicial warrant,” and not merely an administrative one. Id. at 141 (internal quotation marks omitted).
New York City appears to have placed restrictions on its employees’ cooperation with federal immigration authorities as early as 1989. See City of New York v. United States, 179 F.3d at 31 (discussing 1989 executive order prohibiting city officials or employees from communicating individual’s immigration status to federal authorities unless (1) required to do so by law, (2) expressly authorized to do so by alien, or (3) alien is suspected of criminal behavior). Then, in a 2003 Executive Order, the City established a “General Confidentiality Policy” summarized by the district court as follows:
City employees may not disclose an individual’s immigration status, except in limited circumstances, such as when the disclosure is authorized by the individual, is required by law, is to another City employee as necessary to fulfill a governmental purpose, pertains to an individual suspected of illegal activity (other than mere status as an undocumented immigrant), or is necessary to investigate or apprehend persons suspected of terrorist or illegal activity (other than mere documented status). Additionally, police
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as these limitations “may be causing local officials to believe and apply the[se] policies in a manner that prohibits or restricts cooperation with [federal immigration officials] in all respects,” that would be “inconsistent with and prohibited by Section 1373.” Id. at 141. Thus, “to the extent [DOJ]’s focus is on ensuring that grant applicants comply with Section 1373,” the IG stated that it could consider taking “several steps,” including (1) clarifying that § 1373 “is an ‘applicable federal law’” that DOJ grant recipients “would be expected to comply with in order to satisfy relevant grant rules and regulations”; and (2) “[r]equir[ing] grant applicants to provide certifications specifying the applicants’ compliance with Section 1373, along with documentation sufficient to support the certification.” Id. at 142.
Following this IG report, in July 2016, DOJ, then still headed by Attorney General Lynch, specifically identified § 1373 as “an
officers may not inquire about a person’s immigration status unless investigating illegal activity other than mere undocumented status, and may not inquire about the immigration status of crime victims or witnesses at all. Other city employees may not inquire about any person’s immigration status unless the inquiry is required by law or is necessary to determine eligibility for or to provide government services.
New York v. Dep’t of Justice, 343 F. Supp. 3d at 223 (citations omitted). The IG reported that by law enacted in November 2014, New York City further prohibited its Corrections personnel from communicating inmate release dates to federal immigration authorities unless the inmate is subject to a detainer supported by a judicial warrant. See App. at 141.
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applicable federal law” for purposes of both Byrne and SCAAP grants and began providing applicants and recipients with guidance as to the requirements of that statute. That guidance explained that § 1373 imposed no affirmative obligation on States and localities but, rather, prohibited such entities from taking actions to restrict the exchange of immigration information with federal authorities.13 For some jurisdictions identified by the IG, notably plaintiff New York City, DOJ conditioned the continuance of their 2016 Byrne grants on the submission of documentation validating their compliance with § 1373.14
13 In that respect, DOJ stated,
Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information. Rather, the statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices.
App. at 151 (internal quotation marks omitted).
14 The validation requirement imposed by DOJ on New York City’s 2016 Byrne grant stated as follows:
The recipient agrees to undertake a review to validate its compliance with 8 U.S.C. § 1373. If the recipient determines that it is in compliance with 8 U.S.C. § 1373 at the time of review, then it must submit documentation that contains a validation to that effect and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. If the
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In October 2016, DOJ published further guidance stating that henceforth, “all” Byrne grant applicants “must certify compliance with all applicable federal laws, including Section 1373.” App. at 182. Grant applicants were advised “to examine their policies and procedures to ensure they will be able to submit the required assurances” in their 2017 applications. Id. at 183.
Thus, when in July 2017, a new Attorney General, serving a new, Republican administration, announced that applicants for 2017 Byrne grants would have to certify their compliance with § 1373, he was putting into effect the same condition earlier announced by DOJ under the preceding, Democratic administration.
recipient determines that it is not in compliance with 8 U.S.C. § 1373 at the time of review, then it must take sufficient and effective steps to bring it into compliance therewith and thereafter submit documentation that details the steps taken, contains a validation that the recipient has come into compliance, and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. Documentation must be submitted . . . by June 30, 2017. Failure to comply with this condition could result in the withholding of grant funds, suspension or termination of the grant, ineligibility for future [grants], or other administrative, civil, or criminal penalties as appropriate.
App. at 170, ¶ 53. By letter dated June 27, 2017, the City stated that “[n]otwithstanding [its] position that § 1373 is not an applicable federal law . . . the City certifies that its laws and policies comply with and operate within the constitutional bounds of § 1373.” 2016 Compliance Validation at 2, New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (No. 18‐cv‐6474), ECF No. 41‐1.
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IV. Plaintiffs’ 2017 Byrne Grant Awards On June 26, 2018, DOJ applied the Byrne Program formula to
award the plaintiff States Byrne grants totaling $25 million—subject to their acceptance of the three immigration‐related conditions at issue. As to New York City, DOJ reiterated, in both October 2017 and January 2018, the concerns it had first expressed in 2016, i.e., that certain of the City’s laws or policies appeared to violate § 1373, which could render it ineligible for Byrne grants. See supra at n.14.
In response to these DOJ actions, the plaintiff States and City filed the instant related actions, challenging, inter alia, the Certification, Notice, and Access Conditions for 2017 Byrne grants as violative of both the APA and the Constitution.
V. The Award of Summary Judgment to Plaintiffs On the parties’ cross motions for summary judgment, the
district court granted partial judgment to plaintiffs, enjoining the enforcement of the challenged conditions as to them and mandating the release of 2017 Byrne grant funds to plaintiffs.
In so ruling, the district court held that the challenged conditions violated the APA in two respects: (1) the Attorney General lacked the statutory authority to impose the conditions, see New York v. Dep’t of Justice, 343 F. Supp. 3d at 22731; and (2) defendants’ failure to consider the conditions’ potential negative ramifications for plaintiffs’ law enforcement efforts rendered the conditions arbitrary and capricious, see id. at 23841.
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While the district court could have stopped there, it proceeded also to rule on certain of plaintiffs’ constitutional challenges. As to § 1373 in particular, the district court ruled that DOJ could not identify it as an “applicable law” requiring compliance certification under 34 U.S.C. § 10153(a)(5)(D) because, on its face, § 1373 violates the anticommandeering principle of the Tenth Amendment to the Constitution. See id. at 23137. Further, the district court concluded that, in the absence of statutory authority for the Attorney General to impose the challenged conditions, all three violated the separation of legislative and executive powers mandated by Articles I and II of the Constitution. See id. at 238.
Defendants timely appealed.
DISCUSSION
We review an award of summary judgment de novo, construing the record in the light most favorable to the non‐moving party. See, e.g., Bentley v. Autozoners, 935 F.3d 76, 85 (2d Cir. 2019). We will uphold such an award only if there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. See id.
I. Statutory Authorization To Impose the Challenged Conditions
Except when acting pursuant to powers expressly conferred on the Executive Branch by the Constitution—which are not asserted here—an executive department or agency “literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana
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Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Thus, the APA requires that executive action taken in the absence of statutory authority be declared invalid. See 5 U.S.C. § 706(2)(C).15 When the challenged action is not only unauthorized but also intrusive on power constitutionally committed to a coordinate branch, the action may violate the Constitution, specifically, its mandate for the separation of legislative from executive powers.16
DOJ maintains that the Attorney General was statutorily authorized to impose each of the challenged conditions. Whether Congress conferred such authority depends on statutory text, which we construe de novo. See Kidd v. Thomson Reuters Corp., 925 F.3d 99,
15 The relevant statutory text states as follows:
[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . . . 5 U.S.C. § 706(2)(C).
16 See generally New York v. United States, 505 U.S. 144, 182 (1992) (“[S]eparation of powers . . . is violated where one branch invades the territory of another.”). But see Dalton v. Specter, 511 U.S. 462, 472 (1994) (explaining that not every action “in excess of . . . statutory authority is ipso facto in violation of the Constitution,” and distinguishing between “claims of constitutional violations and claims that an official has acted in excess of his statutory authority”).
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103 (2d Cir. 2019); United States v. Shyne, 617 F.3d 103, 106 (2d Cir. 2010).17
A. Title 34 U.S.C. § 10102(a)(6) Does Not Itself Authorize the Challenged Conditions
Because DOJ devotes considerable energy on this appeal, as it did in the district court, to arguing that the challenged conditions are authorized by 34 U.S.C. § 10102(a)(6), we explain at the outset why that argument does not persuade. We will then discuss sections of Title 34 that do authorize the conditions at issue.
At the conclusion of a list of criminal‐justice‐related duties assigned to the AAG, § 10102(a)(6) authorizes the AAG,
[to] exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
17 Defendants have not claimed Chevron deference for their own interpretation of the authority conferred by statutes pertaining to Byrne grants and, thus, on this appeal, we do not consider whether any such deference might be warranted. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984); compare Neustar, Inc. v. FCC, 857 F.3d 886, 894 (D.C. Cir. 2017) (holding Chevron deference “forfeited” where not claimed on appeal), with Sierra Club v. United States Dep’t of the Interior, 899 F.3d 260, 286 (4th Cir. 2018) (explaining in case where parties assumed Chevron deference that parties “cannot waive the proper standard of review by failing to argue it” (internal quotation marks omitted)). Rather, we conclude on de novo review that the challenged conditions are statutorily authorized.
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34 U.S.C. § 10102(a)(6) (emphasis added). Focusing on the highlighted language, DOJ argues that § 10102(a)(6) does not merely authorize the Attorney General to delegate powers and functions to the AAG, but also grants “addition[al]” authority, which supports the three challenged conditions. Appellant Br. at 22; see Reply Br. at 4–5.
In rejecting this argument, the district court held that the highlighted text is not a “‘stand‐alone grant of authority to the Assistant Attorney General to attach any conditions to any grants.’” New York v. Dep’t of Justice, 343 F. Supp. 3d at 228 (quoting City of Chicago v. Sessions, 888 F.3d at 285). Rather, the introductory word “including” signals that the ensuing phrase is necessarily cabined by what went before it.
Thus, the Assistant Attorney General can only place special conditions or determine priority purposes to the extent that power already “may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General[,]” . . . who may only delegate it to the extent that he has such power himself.
Id. (quoting 34 U.S.C. § 10102(a)(6)).
This conclusion finds support not only in City of Chicago v. Sessions, the Seventh Circuit decision quoted by the district court, but also in subsequent decisions of the Third and Ninth Circuits. See City of Los Angeles v. Barr, 941 F.3d at 93839; City of Philadelphia v. Attorney Gen., 916 F.3d at 28789. We agree with that much of these courts’ decisions.
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Depending on context, the word “including” can be either illustrative or enlarging. Compare Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (construing word as illustrative of preceding section), with American Sur. Co. of N.Y. v. Marotta, 287 U.S. 513, 517 (1933) (observing that, “[i]n definitive provisions of statutes,” word frequently signifies extension rather than limitation), and Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991) (noting dual meaning of word). The context here signals illustration rather than enlargement. It is the “other powers and functions” that may be vested in or delegated to the AAG that can “include” the authority to impose special conditions and to set priority purposes for Byrne Program grants. Thus, § 10102(a)(6) does not itself confer authority on the Attorney General (or AAG) to impose the conditions here at issue. The authority must originate in other provisions of law. That is the case here.
B. Statutory Provisions Authorizing the Attorney General To Impose the Challenged Conditions
1. Other Circuits Identify No Such Authority
In looking to whether the Attorney General is otherwise authorized to impose the challenged conditions, we are mindful that three sister circuits have considered that question before us and concluded that he is not. Their reasons for so holding have not been uniform.
The Seventh Circuit so ruled with respect to the Notice and Access Conditions, reasoning that no provision of law outside § 10102(a)(6) specifically mentions “special conditions” or “priority
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purposes” for Byrne grants. See City of Chicago v. Sessions, 888 F.3d at 285.
The Ninth Circuit did not think that omission determinative. Reasoning that Congress could not have enacted § 10102(a)(6) “for the purpose of expressly authorizing the Assistant AG to exercise powers that do not exist,” that court construed § 10102(a)(6) as effectively “confirming” what had been implicit in the overall statutory scheme, i.e., that the Attorney General has the authority to impose special conditions on, and to identify priority purposes for, Byrne grants, which authority he can delegate to the AAG. City of Los Angeles v. Barr, 941 F.3d at 939. We agree with that much of the Ninth Circuit’s reasoning. The court goes on, however, to construe the terms “special conditions” and “priority purposes” narrowly and, from that, concludes that the Attorney General is not statutorily authorized to impose the challenged Notice and Access Conditions. See id. at 93941 (construing “special conditions” as used in § 10102(a)(6) to reference only “tailored requirements” necessary to particular circumstance “such as when a grantee is [at] ‘high‐risk’” of violating a grant’s terms, not general conditions applicable to all grants); id. at 94142 (limiting “priority purposes” for Byrne awards to purposes set out in § 10152(a)).
We cannot adopt the Seventh or Ninth Circuit’s conclusions because we do not think the Attorney General’s authority to impose the three challenged conditions here derives from the words “special conditions” or “priority purposes.” Rather, we locate that authority in other provisions of law, specifically, those requiring Byrne grant
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applicants to satisfy the program’s statutory requirements in such “form” and according to such “rules” as the Attorney General prescribes. See 34 U.S.C. §§ 10153(a), 10153(a)(5), 10155. Considering that form‐ and rule‐making authority in light of three particular statutory requirements—(1) for certification of willingness to comply with “applicable Federal laws,” id. § 10153(a)(5)(D); (2) for assurance that required information will be maintained and reported, see id. § 10153(a)(4); and (3) for coordination with affected agencies, see id. § 10153(a)(5)(C)—we conclude that the Attorney General is statutorily authorized to impose the challenged conditions.
Before explaining that conclusion, we acknowledge that the Third Circuit, considering these same three statutory requirements, held that none supports the challenged conditions. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28591. The Third Circuit, however, viewed the Attorney General’s statutory authority respecting Byrne Program grants as “exceptionally limited.” Id. at 28485. We do not.
The Third Circuit emphasized that the Byrne Program awards formula grants. See id. at 290. We agree that the Attorney General’s authority to depart from that formula when awarding grants to qualified applicants is extremely limited. But before there can be an award, there must be a demonstrated showing of qualification. Repeatedly and throughout its pronouncement of Byrne Program statutory requirements, Congress makes clear that a grant applicant demonstrates qualification by satisfying statutory requirements in such form and according to such rules as the Attorney General
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establishes. This confers considerable authority on the Attorney General.18
18 The following statutory sections confer on, or confirm, the Attorney General’s authority in this respect:
• 34 U.S.C. § 10152(c)(1) – Requiring every program funded with a Byrne grant to have a “program assessment component, developed pursuant to guidelines established by the Attorney General” together with the National Institute of Justice. • Id. § 10152(d)(2) – Authorizing Attorney General to certify that extraordinary and exigent circumstances warrant using Byrne grant funds for generally prohibited expenditures. • Id. § 10152(f) – Affording Attorney General discretion to extend Byrne grants beyond normal four‐year period. • Id. § 10153(a) – Requiring Byrne grant applicants to submit application to Attorney General “in such form as the Attorney General may require,” including statutorily required certifications and assurances. • Id. § 10153(a)(5)(C) – Requiring certification “in a form acceptable to the Attorney General” that “there has been appropriate coordination with affected agencies.” • Id. § 10153(a)(5)(D) – Requiring certification “in a form acceptable to the Attorney General” that “applicant will comply with all provisions of this part and all other applicable Federal laws.” • Id. § 10154  Requiring Attorney General to afford applicant notice and opportunity to correct any application deficiencies before finally disapproving application. • Id. § 10155 – Requiring Attorney General to “issue rules to carry out this part.”
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To be sure, the Attorney General’s authority in identifying qualified Byrne applicants is not limitless but, rather, a function of the particular requirements prescribed by Congress. Not surprisingly, however, Congress has prescribed those requirements broadly, enlisting the Attorney General to delineate the rules and forms for them to be satisfied. See generally United States v. Haggar Apparel Co., 526 U.S. 380, 39293 (1999) (explaining that because “Congress need not, and likely cannot, anticipate all circumstances in which a general policy must be given specific effect[,]” agency may issue rules so that statute “may be applied . . . in a manner consistent with Congress’ general intent”). While the Attorney General certainly cannot exercise that authority arbitrarily or capriciously, see infra Point II, the authority itself cannot fairly be characterized as “exceptionally limited.”
With that understanding, we proceed to consider each challenged condition and the statutory provisions supporting it.
2. The Certification Condition Is Statutorily Authorized by 34 U.S.C. § 10153(a)(5)(D)
a. The Statutory Text Requires Applicants To Certify a Willingness To Comply With “All . . . Applicable Federal Laws”
The Certification Condition requires a Byrne grant applicant to certify that, throughout the grant period, it will comply with 8 U.S.C. § 1373, the federal law prohibiting any government entity or official from restricting the receipt, maintenance, or exchange of information regarding citizenship or immigration status as specified in that
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statute. See supra at 15 (quoting condition). The Attorney General’s statutory authority to impose this condition derives from 34 U.S.C. § 10153(a)(5)(D). Therein, Congress specifically requires a Byrne grant applicant to include in its application “[a] certification, made in a form acceptable to the Attorney General” stating that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added).
The conjunctive structure of § 10153(a)(5)(D) makes plain that a Byrne grant applicant must certify its willingness to comply with more than those provisions of law specifically pertaining to the Byrne Program (“this part”). It must also certify its willingness to comply with “all other applicable Federal laws.” Id. At the same time that this phrase expands an applicant’s certification obligation, the word “applicable,” as used in the phrase, serves a limiting function. A Byrne applicant is not required to certify its willingness to comply with the United States Code in its entirety as well as all accompanying regulations. Rather, an applicant must certify its willingness to comply with those laws—beyond those expressly stated in Chapter 34—that can reasonably be deemed “applicable.” This raises two questions: What is an “applicable” law? And who identifies it? We answer the second question first because it is not seriously disputed and, thus, requires only brief discussion.
1. The Attorney General Is Authorized To Identify “Other Applicable Federal Laws” Requiring § 10153(a)(5)(D) Compliance Certification
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The statutory text signals that the Attorney General identifies the laws requiring § 10153(a)(5)(D) compliance certification. This is evident in the requirement that Byrne grant applicants provide certification in a “form acceptable to the Attorney General.” Id. § 10153(a)(5). A “form” is commonly understood to be a “document” for providing “required or requested specific information.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 892 (1986). By requiring that § 10153(a)(5)(D) certification be in a “form acceptable to the Attorney General,” the statute makes clear that it is the Attorney General who has authority to “require[] or request[] specific information,” to ensure a grant applicant’s intended compliance with all other applicable federal laws. See id. Thus, § 10153(a)(5)(D) authorizes the Attorney General to decide not only the style (e.g., format and typeface) for § 10153(a)(5)(D) certification, but also the specificity of its content, i.e., whether certification is “acceptable” in a form that references “all other applicable Federal laws” generally, or whether such certification needs to be in a form that identifies specific applicable laws.19
That Congress would vest such authority in the Attorney General makes sense for several reasons. First, while Congress itself requires compliance certification as to “all other applicable Federal laws,” the number of laws that could apply to States and localities seeking Byrne funding is large, variable, and not easily identified in a
19 While matters of “substance” are frequently distinguished from matters of “form,” see, e.g., PPL Corp. v. Comm’r of Internal Revenue, 569 U.S. 329, 340–41 (2013) (distinguishing between form and substance of a tax), a form serves to ensure the communication of required substance.
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single statutory provision. Second, the Attorney General, as the nation’s chief federal law enforcement official, is particularly suited to identify the federal laws applicable to persons and circumstances. Third, having the Attorney General identify specific laws requiring § 10153(a)(5)(D) certification serves the salutary purpose of affording applicants clear notice of what is expected of them as Byrne grant recipients.20
2. “All Other Applicable Federal Laws” Encompasses Both Laws Applying To the Entity Seeking a Grant and Laws Applying To the Proposed Grant Program
The district court nevertheless concluded that the Attorney General was not authorized to identify § 1373 as an applicable law. It held that “‘applicable Federal laws’ for purposes of 34 U.S.C. § 10153(a)(5)(D) means federal laws applicable to the grant,” not to the grant applicant. New York v. Dep’t of Justice, 343 F. Supp. 3d at 230– 31. Because it thought that § 1373 applies only to applicants in their capacities as State and local governments, not to their grants, the district court ruled that the statute could not be an “applicable” law requiring § 10153(a)(5)(D) certification. Id. at 231. The Third Circuit subsequently reached the same conclusion. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28890. In so ruling, both courts acknowledged that it would be reasonable to construe the statutory text to mean laws applicable to a grant applicant as well as to a requested grant. See id. at 288; New York v. Dep’t of Justice, 343 F. Supp.
20 We discuss this notice point further infra at 47–49.
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3d at 23031. Nevertheless, the Third Circuit concluded that a narrower construction was required by the canon against surplusage, the structure of the statute, the historical practice of DOJ, and the formula‐grant nature of the program. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28991. The district court relied on similar reasoning, as well as Congress’s obligation “unambiguously” to impose conditions on grants of federal money, to justify its narrow reading of § 10153(a)(5)(D). New York v. Dep’t of Justice, 343 F. Supp. 3d at 231 (internal quotation marks omitted). We cannot agree.
First and foremost, we do not think the statutory text admits such narrowing. See generally Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (stating that “when the words of a statute are unambiguous . . . judicial inquiry is complete” (internal quotation marks omitted)); accord Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 403 (2d Cir. 2019) (citing Connecticut Nat’l Bank v. Germain). The word “applicable,” as used in § 10153(a)(5)(D), is not statutorily defined. Thus, it is properly construed according to its contemporary dictionary definition, see Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012); accord Munoz‐Gonzalez v. D.L.C. Limousine Serv., Inc., 904 F.3d 208, 213 (2d Cir. 2018), which is “capable of being applied: having relevance,” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 105. Statutes are “capable of being applied,” and can be relevant both to persons and to circumstances. A second dictionary definition for the word “applicable”—“fit, suitable, or right to be applied,” id.—only reinforces that conclusion, in that a statute may be
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fit, suitable, or right to apply both to persons and to circumstances.21 Thus, an “applicable Federal law” under § 10153(a)(5)(D) is one pertaining either to the State or locality seeking a Byrne grant or to the grant being sought.
To the extent the district court might be understood to have construed “all other applicable laws” to mean only laws applying to States and localities as recipients of federal grants, nothing in the statutory text suggests that Congress there used the word “applicable” only in that limited sense. To the contrary, Congress’s use of the adjective “all” to introduce the phrase “all other applicable Federal laws” signals an intent to give the word “applicable” its full effect, not to narrow it. See Norfolk & W. Ry. Co. v. Am. Train Dispatchers Assʹn, 499 U.S. 117, 128–29 (1991) (explaining that phrase “all other law” is “clear, broad, and unqualified” and “indicates no limitation” (internal quotation marks omitted)).
Second, we cannot agree with the Third Circuit that a redundancy or surplusage problem arises if “all other applicable Federal laws” is construed to mean laws pertaining both to Byrne applicants and to the grants they seek. See City of Philadelphia v. Attorney Gen., 916 F.3d at 289 (concluding that such construction effectively equates phrase with “other Federal laws,” making word “applicable” mere surplusage). As explained supra at 36, the word
21 See Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69–70 (2011) (using both dictionary definitions in construing phrase “debtor’s applicable monthly expense amounts” in provision of Bankruptcy Code (emphasis added) (quoting 11 U.S.C. § 707(b)(2)(A)(ii)(I))).
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“applicable” does serve a limiting function in the statutory text—even if not as limiting as plaintiffs might wish. Thus, to raise a redundancy concern, the Third Circuit must imply that if Congress had used the phrase “all other Federal laws” in § 10153(a)(5)(D), then courts would have to infer the word “applicable” because of the improbability of Congress requiring certification for the entirety of federal law. But Congress did not use that broader phrase in § 10153(a)(5)(D). And we do not think its use of a modifying word—“applicable”—to make explicit in actual statutory text what our sister circuit thinks would have to be implied in a hypothetical alternative manifests surplusage. Rather, we think it demonstrates clear drafting.
Third, the formula nature of the Byrne Program does not warrant limiting the phrase “all other applicable Federal laws.” While Congress’s intent in appropriating funds for formula (as distinct from discretionary) grants is to have all the money distributed, even a formula grant applicant must satisfy the program’s requirements before being entitled to receive funding. Cf. Richard B. Cappalli, Rights and Remedies Under Federal Grants 40 (1979) (remarking that states typically qualify for formula grants after submitting document statutorily described as “state plan,” which serves as “vehicle by which the state commits itself to abide by the conditions which Congress attaches to the funds”). As to the Byrne Program, this is evident from the fact that Congress has expressly provided for alternative distributions of appropriated funds if “a State will be unable to qualify” for a Byrne granta matter Congress also leaves for “the Attorney General [to] determine[].” 34 U.S.C. § 10156(f); see supra at 13. Thus, Byrne Program formula funding can
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be denied to an applicant that fails to provide the required § 10153(a)(5)(D) certification as to any “applicable Federal law[],” whether that law pertains to the particular grant sought or to the applicant seeking it.22
Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One has only to imagine millions of dollars in
22 The Third Circuit inferred from the fact that qualifying Byrne (and other federal) grant recipients could lose a specified (often small) percentage of their annual distribution if they fail to comply with certain other statutes, that the Attorney General was not statutorily authorized “to withhold all of a [Byrne] grantee’s funds for any reason the Attorney General chooses.” City of Philadelphia v. Attorney Gen., 916 F.3d at 286 (emphases in original) (citing 34 U.S.C. § 20927(a) (providing mandatory 10% penalty for failure to comply with Sex Offender Registration and Notification Act); id. § 30307(e)(2) (mandating 5% penalty for failure to comply with Prison Rape Elimination Act); id. § 40914(b) (withholding up to 4% of funding for failure to meet requirements of National Instant Criminal Background Check System)). That reasoning does not apply here, where the issue is not whether the Attorney General can withhold Byrne funding for any reason from qualifying applicants, but whether he can deny any such funding to an applicant that fails to demonstrate qualification under the Program’s statutory requirements, indeed, fails to satisfy them in a “form acceptable to the Attorney General,” as Congress has mandated. 34 U.S.C. § 10153(a)(5). To be sure, the form acceptable to the Attorney General must be grounded in the qualifying requirements it serves, but where that is the case, an applicant’s failure—or refusal—to satisfy the statutory requirement in that form can result in denial of a Byrne grant. While the Attorney General cannot “finally disapprove” a deficient Byrne grant application “without first affording the applicant reasonable notice of any deficiencies . . . and opportunity for correction and reconsideration,” id. § 10154, if those deficiencies persist after such notice and opportunity, then the Attorney General is authorized to deny the grant in its entirety and to reallocate funds as provided in § 10156(f).
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Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the Attorney General to condition the locality’s receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality, which includes environmental laws.
The conclusion obtains with even more force here, where enactment of the law at issue, 8 U.S.C. § 1373, was informed by Congress’s concern that States and localities receiving federal grants were hampering the enforcement of federal immigration laws. See supra at 17–20. Subsequent reports that increasing numbers of federal grant recipients were limiting cooperation with federal immigration authorities prompted a congressional request for DOJ investigation, the results of which led two successive Attorneys General serving different administrations to identify § 1373 as an “applicable Federal law” requiring compliance certification. See supra at 20–25.23 We are satisfied that these identifications are authorized by the plain
23 The IG’s findings, see supra at 21–23, might well be found to demonstrate the “high risk” identified by the Ninth Circuit for imposing “special conditions” on Byrne grants, see City of Los Angeles v. Barr, 941 F.3d at 940 (holding that “special conditions,” as referenced in § 10102(a)(6), means “unusual” or “extraordinary” conditions for a “high‐risk grantee,” i.e., a grantee with “a history of noncompliance with grant requirements, financial stability issues, or other factors that suggest[] a propensity toward violation of a grant’s terms” (internal quotation marks omitted)).
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language of § 10153(a)(5)(D), and the formula nature of the Byrne Program requires no contrary conclusion.
Fourth, the Third Circuit observes that certain § 10153(a)(5) certification requirements appear, on their face, to pertain to the requested grant rather than to the grant applicant. See City of Philadelphia v. Attorney Gen., 916 F.3d at 289 (citing § 10153(a)(5)(A) (requiring certification that “the programs to be funded by the grant meet all the requirements of this part”); § 10153(a)(5)(B) (requiring certification that “all the information contained in the application is correct”); and § 10153(a)(5)(C) (requiring certification that “there has been appropriate coordination with affected agencies”)). That, however, is insufficient reason to impose a similar limitation on § 10153(a)(5)(D), when the plain language of that provision—“all other applicable Federal laws”—reaches more broadly. See generally Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. at 127, 129 (rejecting argument that exemption from “antitrust laws and from all other law” was limited to antitrust‐related laws; ejusdem generis canon does not apply where neither statutory text nor context supports urged limitation (emphasis added) (internal quotation marks omitted)).
In urging otherwise, plaintiffs point to 34 U.S.C. § 10228, which states that “[n]othing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” As the Fourth Circuit has
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observed in construing § 10228’s predecessor statute, the provision is intended “to guard against any tendency towards federalization of local police and law enforcement agencies.” Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (construing statute to prohibit federal authorities from “[prescribing] the type of shoes and uniforms to be worn by local law enforcement officers, the type or brand of ammunition to be purchased and used by police departments and many other vital matters pertaining to the day‐to‐day operations of local law enforcement” (citation omitted)). Section 1373 raises no such federalization concern. It does not direct, control, or supervise the day‐to‐day operations of any State or local police force or law enforcement agency. It does not mandate that State or local law enforcement authorities cooperate with federal immigration officers. It requires only that nothing be done to prohibit voluntary communication about citizenship or immigration status among such officials. See supra at 24. To hold that § 10228 places such a statutory requirement outside the scope of applicable laws requiring § 10153(a)(5)(D) compliance certification is to render that qualification condition a nullity, as compliance with every federal law necessarily places some limits on a grant applicant’s actions. Indeed, that conclusion applies whether the law pertains to the applicant or the grant program. We decline to construe § 10228 so broadly as to render § 10153(a)(5)(D) inoperative. Cf. Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 250 (1985) (noting “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative” (internal quotation marks omitted)). See generally Ely v. Velde, 451 F.2d at 1136 (declining to construe predecessor provision “so broadly as unnecessarily to undercut
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solutions adopted by Congress to preserve and protect other societal values”).24
Fifth, DOJ’s own focus on laws pertaining to grants rather than applicants in its past identifications of “applicable” federal laws does not itself limit the word. Given the scope of local programs that can be funded with Byrne grants, it is not surprising that DOJ would most frequently identify laws applicable to a particular program in specifying the form of an acceptable § 10153(a)(5)(D) certification. See generally City of Philadelphia v. Attorney Gen., 916 F.3d at 290 (observing that if requested grant was to be used for body armor purchases or human research, applicants were expected to certify willingness to comply with applicable federal regulations in those areas). Far fewer, one expects, will be the occasions when States and localities seeking Byrne grants are themselves violators of federal laws applicable to them. Nevertheless, in such circumstances, the violated laws fall within the plain meaning of the phrase “all other applicable Federal laws” as used in § 10153(a)(5)(D). To illustrate, while the Attorney General can—and has—required applicants proposing to use Byrne grants for construction or renovation projects to comply with federal environmental laws specifically applicable to such work, that hardly means he cannot also require an applicant that has a history of violating environmental laws generally from certifying its willingness going forward to comply with such laws. The laws are applicable in
24 Insofar as plaintiffs rely not only on § 10228, but also on the Tenth Amendment to argue that § 1373 cannot be an “applicable” law requiring Compliance Certification, we discuss that constitutional point infra at 49–61.
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the former instance to the grant purpose; in the latter, to the grant applicant. In either case, the Attorney General is requiring compliance certification as to “applicable Federal laws.”
Sixth, Congress’s duty to speak unambiguously in imposing conditions on federal grant money also does not require “all other applicable Federal laws” to be construed to mean only laws pertaining to grants and not to grant applicants. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 231. The duty derives from Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981). The Supreme Court there analogized federal spending legislation to “a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” Id. at 17. It concluded therefrom that Congress must “speak with a clear voice” in placing conditions on federal grants because there “can . . . be no knowing acceptance [of the putative contract] if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id.
“Knowing acceptance” is no concern here. Section 10153(a)(5)(D) provided plaintiffs with clear notice that their Byrne grant applications had to include a certification, in a form acceptable to the Attorney General, of their willingness to comply not only with laws specifically applicable to the Byrne Program, but also with “all other applicable Federal laws.” To the extent the quoted phrase fails to specify precisely which laws are “applicable,” that uncertainty can pertain as much for laws applicable to requested grants as for those applicable to grant applicants. Thus, the district court’s Pennhurst reasoning does not support its conclusion that “applicable Federal
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laws” can pertain only to requested Byrne grants, not to grant applicants.
But more to the point, no Pennhurst concern arises here because plaintiffs were given advance notice that their 2017 Byrne grant applications had to certify a willingness to comply with § 1373. Indeed, they were given such notice twice, first in 2016, and again in 2017. See supra at 23–25. To be sure, that notice was provided by DOJ rather than Congress. But the Supreme Court has recognized that, in establishing federal grant programs, Congress cannot always “prospectively resolve every possible ambiguity concerning particular applications of the [program’s statutory] requirements.” Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 666, 669 (1985) (making point in context of federal education grant program). Thus, it has upheld an administering agency’s clarifying interpretations, and even its violation determinations, as long they were grounded in “statutory provisions, regulations, and other guidelines provided by the Department” at the time of the grant. Id. at 670–71; see also United States v. O’Hagan, 521 U.S. 642, 67273 (1997) (recognizing agency authority to prescribe legislative rules consistent with statute). Plaintiffs here may disagree with the identification of § 1373 as an “applicable Federal law,” but they can hardly complain of inadequate notice.
In a final argument in support of their APA challenge to the Attorney General’s identification of § 1373 as an applicable federal law, plaintiffs point to Congress’s rejection of various legislative proposals to impose immigration‐related conditions on receipt of
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federal funds. As the Supreme Court has cautioned, “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks omitted). Such legislative history “is a particularly dangerous ground” of construction where, as here, the “proposal[s] . . . do[] not become law.” Id. Indeed, “several equally untenable inferences may be drawn from” congressional inaction, “including the inference that the existing legislation already incorporated the offered change.” Id. (internal quotation marks omitted). Thus, this challenge to the Attorney General’s § 10153(a)(5)(D) authority to identify § 1373 as an “applicable” law also fails.
In sum, we conclude that the plain language of § 10153(a)(5)(D), authorizes the Attorney General to require certification in a form that specifically references federal laws applicable either to the Byrne grant sought or to the State or locality seeking that grant. Because 8 U.S.C. § 1373 is a law applicable to all plaintiffs in this action, the Attorney General was authorized to impose the challenged Certification Condition and did not violate either the APA or separation of powers by doing so.
b. Tenth Amendment Challenge (1) “As Applied” Review
The district court ruled not only that the Certification Condition was not statutorily authorized, but also that it could not be so authorized without violating the Constitution. Specifically, the district court held that 8 U.S.C. § 1373, the law for which the condition
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required certification, “is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment,” and, as such, “drops out of the possible pool of ‘applicable federal laws’” requiring § 10153(a)(5)(D) certification. New York v. Dep’t of Justice, 343 F. Supp. 3d at 237 (internal quotation marks omitted). The district court did not have to reach this constitutional question, having already found the Certification Condition to violate the APA. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (noting that “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”); accord Camreta v. Greene, 563 U.S. 692, 705 (2011). This court, however, cannot avoid the issue in light of our ruling that the Certification Condition is statutorily authorized.
For reasons briefly explained herein, we think the district court’s reasoning insufficient to support its declaration of facial unconstitutionality. We do not pursue the matter in detail, however, because § 1373’s constitutionality is properly assessed here not on the face of the statute, but as applied to clarify a federal funding requirement.25 In that context, § 1373 does not constitute commandeering in violation of the Tenth Amendment.
25 As the Supreme Court has long recognized, “as‐applied challenges are the basic building blocks of constitutional adjudication,” and it is not the court’s “traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.” Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (internal quotation marks and alterations omitted); see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982) (holding that courts
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To the extent the district court thought that § 1373 had to be constitutional in all its applications to be identified as an “applicable Federal law[]” warranting § 10153(a)(5)(D) certification, it was mistaken. Even assuming arguendo that § 1373 can constitutionally be applied to States and localities only when they are seeking federal funding—a matter we do not here decide—the principle of severability would warrant upholding the statute as so narrowed. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987) (discussing severability in addressing constitutional challenges to statutes); accord National Fed’n of Indep. Bus. (“NFIB”) v. Sibelius, 567 U.S. 519, 586–88 (2012) (severing part of Affordable Care Act raising constitutional concerns and upholding remainder); United States v. Booker, 543 U.S. 220, 245 (2005) (remedying constitutional defect in Sentencing Guidelines by severing provision for mandatory application). There can be no question that Congress would have enacted the law, even as so narrowed. Legislative history indicates that § 1373’s enactment was animated by reports that States and localities receiving federal
should consider constitutional challenge to statute as applied to plaintiff before considering other applications); Yazoo & Miss. Valley R.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219–20 (1912) (upholding statute as applied to instant case without speculating as to how it might apply in other circumstances); accord United States v. Holcombe, 883 F.3d 12, 17 (2d Cir. 2018) (explaining that where First Amendment rights are not implicated, court considers constitutional challenge “in light of the specific facts of the case at hand” (internal quotation marks omitted)). Section 1373 is not here challenged as constitutionally vague, much less constitutionally vague in a way implicating First Amendment rights, so as to warrant more than as‐ applied review. See Farrell v. Burke, 449 F.3d 470, 496 (2d Cir. 2006) (“The general rule disfavoring facial vagueness challenges does not apply in the First Amendment context.”); see also United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (“In our constitutional order, a vague law is no law at all.”).
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funding were hindering cooperation with immigration authorities. See supra at 17–20. Nor is there any reason to think that the law would not operate as Congress intended as applied in the funding context. See generally Alaska Airlines, Inc. v. Brock, 480 U.S. at 684–85 (discussing two factors informing severability).
With this understanding, that, in the end, the proper scope of constitutional inquiry is “as applied,” we briefly discuss concerns raised by the district court’s facial assessment before explaining our conclusion that § 1373 does not violate the Tenth Amendment as applied here to States and localities seeking Byrne Program grants.
(2) The District Court’s Identification of Facial Unconstitutionality
The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. From this text, the Supreme Court has derived an “anticommandeering principle,” which prohibits the federal government from compelling the States to enact or administer a federal regulatory program. See Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).
This court has already considered, and rejected, a facial commandeering challenge to § 1373. See City of New York v. United States, 179 F.3d 29 (2d Cir. 1999). We reasoned that § 1373 does not
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“compel[] state and local governments to enact or administer any federal regulatory program.” Id. at 35. Nor does it “affirmatively conscript[] states, localities, or their employees into the federal government’s service.” Id. Rather, the law prohibits state and local governments and officials “only from directly restricting the voluntary exchange of immigration information” with federal immigration authorities. Id.
The district court acknowledged this precedent, but concluded that it does not survive Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018).26 The Supreme Court there held that federal legislation prohibiting States from authorizing sports gambling violates the Tenth Amendment’s anticommandeering rule because it “unequivocally dictates what a state legislature may and may not do.” Id. at 1478. The Court explained that it did not matter whether Congress issued such a dictate by commanding affirmative action or imposing a prohibition: “The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id. The district court concluded that Murphy’s reasoning required it to hold § 1373 facially violative of the Tenth Amendment because the statute’s proscriptions prevent States from “adopting [immigration] policies contrary to those preferred by the federal government,” or “extricating themselves from federal immigration
26 It has long been the rule in this circuit that a panel decision controls “unless and until . . . reversed en banc or by the Supreme Court.” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) (internal quotation marks omitted).
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enforcement.” New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks and alterations omitted).
Murphy may well have clarified that prohibitions as well as mandates can manifest impermissible commandeering. But the conclusion that § 1373, on its face, violates the Tenth Amendment does not follow.
A commandeering challenge to a federal statute depends on there being pertinent authority “reserved to the States.” In Murphy, there was no question that, but for the challenged federal law, the States’ police power allowed them to decide whether to permit sports gambling within their borders. That conclusion is not so obvious in the immigration context where it is the federal government that holds “broad,” Arizona v. United States, 567 U.S. at 394, and “preeminent” power, Toll v. Moreno, 458 U.S. at 10. Title 8 of the United States Code, commonly known as the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1101 et seq., is Congress’s “extensive and complex” codification of that power, Arizona v. United States, 567 U.S. at 395.
This does not mean that States can never enact any laws pertaining to aliens. See id. at 404 (observing that “[w]hen there was no comprehensive federal program regulating the employment of unauthorized aliens . . . State had authority to pass its own laws on the subject”). But courts must carefully identify the powers reserved to States in this area of extensive and complex federal legislation and the effect of their exercise on federal immigration laws and policies. It is doubtful that States have reserved power to adopt—in the words of the district court—immigration policies “contrary to those preferred
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by the federal government.” New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks omitted) (emphasis added). As Chief Justice Marshall famously pronounced, “The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” McCulloch v. Maryland, 17 U.S. at 436. The Supreme Court recently made the same point in the immigration context. While acknowledging a State’s “understandable frustrations with the problems caused by illegal immigration,” the Court held that the “State may not pursue policies that undermine federal law.” Arizona v. United States, 567 U.S. at 416.
Here, the district court declared § 1373 facially violative of the Tenth Amendment without identifying what reserved power States have to enact laws or policies seemingly foreclosed by 8 U.S.C. § 1373, i.e., laws prohibiting their officials and agencies from engaging in even voluntary communications about citizenship and immigration status with federal authorities. A court undertaking that inquiry would have to recognize, as the Supreme Court has, that “[c]onsultation between federal and state officials is an important feature of the immigration system” established by the INA. Id. at 411. A court would then have to consider how various INA provisions establish that consultation feature. In Arizona v. United States, the Supreme Court discussed various INA provisions encouraging or prohibiting restrictions on federal‐state sharing of immigration‐status information before concluding that the “federal scheme thus leaves room for a [State] policy requiring state officials to contact [federal
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immigration authorities] as a routine matter.” Id. at 413 (emphasis added). The same conclusion may not be so easy to reach, however, with respect to a State policy prohibiting information sharing. Among the statutes cited in Arizona v. United States to illustrate the importance placed on federal‐state consultation by the INA is 8 U.S.C. § 1644. See 567 U.S. at 412–13. As discussed supra at 17–20, § 1644, like § 1373, prohibits restricting State or local government entities from communicating with federal immigration authorities “‘regarding the immigration status, lawful or unlawful, of an alien in the United States.’’’ Id. (quoting 8 U.S.C. § 1644). Further, even outside the immigration context, the Supreme Court has not decided whether a federal law imposing “purely ministerial reporting requirements” on the States violates the Tenth Amendment. See Printz v. United States, 521 U.S. at 936 (O’Connor, J., concurring) (noting open question regarding statute’s missing child reporting requirement).
While this authority casts doubt on the district court’s identification of facial unconstitutionality, we do not ourselves pursue the point further because, even assuming some power reserved for the States to prohibit information sharing with federal immigration authorities, we conclude that § 1373 does not violate the Tenth Amendment as applied here to a federal funding requirement.27
27 For that same reason, we need not conclusively decide the preemptive effect of § 1373. We note only that, insofar as the district court concluded that the statute could claim no preemptive effect because it confers a “purported federal right to transmit information only on government entities and officials,” not on private
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(3) Section 1373 Raises No Commandeering Concerns as Applied to a Federal Funding Requirement
While Congress cannot regulate the States, its constitutional powers, notably under the Spending Clause, see U.S. CONST. art. I, § 8, cl. 1, do allow it to “fix the terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. at 17. By setting such terms, Congress can “influenc[e] a State’s policy choices,” New York v. United States, 505 U.S. at 166, and even “implement federal policy it could not impose directly under its enumerated powers,” NFIB v. Sibelius, 567 U.S. at 578; see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (explaining that “objectives not thought to be within Article I’s enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds” (internal quotation marks omitted)); United States v. Butler, 297 U.S. 1, 66 (1936) (holding that Congress’s power to place conditions on disbursement of federal funds “is not limited by the direct grants of legislative power found in the Constitution”). Thus, where Congress places conditions on a State’s receipt of federal funds—whether directly, or by delegation of
persons, its focus may have been too narrow. New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks and alterations omitted); see Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. at 1480 (observing that “Constitution . . . confers upon Congress the power to regulate individuals, not States” (internal quotation marks omitted)). As already noted, § 1373 is one provision of a larger statute, the INA, which certainly confers rights and places restrictions on large numbers of private persons.
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clarifying authority to an executive agency—there is no commandeering of reserved State power so long as the State has “a legitimate choice whether to accept the federal conditions in exchange for federal funds.” NFIB v. Sibelius, 567 U.S. at 578.28
A State is deprived of “legitimate choice” only when the federal government imposes grant conditions that pass the point at which “pressure turns into compulsion.” Id. at 577–78 (internal quotation marks omitted). On this point, even the NFIB dissenters agreed. See id. at 681 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting) (observing that “courts should not conclude that legislation is unconstitutional . . . unless the coercive nature of an offer is unmistakably clear”). Pressure can turn into compulsion when the
28 The law further requires that federal grant conditions (1) promote the “general welfare,” (2) “unambiguously” inform States what is demanded of them, (3) reasonably relate “to the federal interest in particular national projects or programs,” and not “induce the States to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. at 207–08, 210 (internal quotation marks omitted). None of these requirements is at issue on this appeal. Section 10153(a)(5)(D)’s requirement that Byrne grant applicants certify their willingness to comply with “all . . . applicable Federal laws” promotes the respect for law necessary to the general welfare. See, e.g., City of Los Angeles v. Barr, 929 F.3d 1163, 1176 (9th Cir. 2019) (“[C]ooperation relating to enforcement of federal immigration law is in pursuit of the general welfare, and meets the low bar of being germane to the federal interest in providing the funding.”). Such a certification condition reasonably relates to the Byrne Program, whose focus, after all, is law enforcement. For reasons discussed supra at 47–48, Congress avoids ambiguity by itself stating that § 10153(a)(5)(D) certification must be made as to all applicable Federal laws, and then authorizing the Attorney General to require certification in a form that references specifically identified applicable laws. Finally, nothing about § 10153(a)(5)(D) induces unconstitutional conduct by the State‐applicants.
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amount of funding that a State would lose by not acceding to the federal conditions is so significant to the States’ overall operations as to leave it with no real choice but to agree.
Such was the case with the Medicaid expansion provision of the Affordable Care Act, which the Supreme Court held invalid in NFIB v. Sebelius because it threatened States rejecting expansion with the withholding of 100% of their Medicaid funding, which constituted 10% to 16% of most States’ total budgets. The Supreme Court concluded that “[t]he threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.” Id. at 581– 82 (describing condition as “a gun to the head”).
The funding loss associated with most grant conditions, however, does not raise such coercion concerns. See id. at 684–85 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting) (observing that Medicaid expansion provision was “quite unlike anything that we have seen in a prior spending‐power case” in that it “threatened to withhold 42.3% of all federal outlays to the States”). In South Dakota v. Dole, the Supreme Court described a threatened loss of 5% of federal highway funding—less than 0.5% of South Dakota’s budget—if the state did not raise its legal drinking age to 21, as only “mild encouragement” and “a valid use of the spending power.” 483 U.S. at 211–12.
This case is much more akin to Dole than to NFIB. While plaintiffs emphasize that a failure to provide § 10153(a)(5)(D) certification in a form acceptable to the Attorney General, i.e., a form
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certifying a willingness to comply with 8 U.S.C. § 1373, can result in the denial of any Byrne funding for that year, plaintiffs do not—and cannot—claim that such a loss represents so significant a percentage of their annual budgets as to cross the line from pressure to coercion. For example, New York’s anticipated 2017 Byrne award is $8,879,161, a significant amount of money to be sure, but one representing less than 0.1% of the State’s annual $152.3 billion budget, a smaller percentage loss even than that in Dole.29 Massachusetts’ anticipated 2017 Byrne award is $3,453,006, also representing less than 0.1% of its annual $38.92 billion budget.30 Thus, however much the plaintiff States would prefer to receive Byrne awards without having to certify their willingness to comply with 8 U.S.C. § 1373, they cannot complain that the consequences for failing to do so are so severe as to leave them with no real choice in the matter. As the Supreme Court has observed in connection with the conditions attached to most federal funding programs: “The States are separate and independent sovereigns. Sometimes they have to act like it.” NFIB v. Sebelius, 567 U.S. at 579.
In sum, the district court erred in holding 8 U.S.C. § 1373 unconstitutional because the statute does not violate the
29 See NEW YORK DIVISION OF THE BUDGET, FY 2017 ENACTED BUDGET FINANCIAL PLAN 69 (May 2016), available at https://www.budget.ny.gov/pubs/ archive/fy17archive/enactedfy17/FY2017FP.pdf.
30 See Press Release, Governor Baker Signs Fiscal Year 2017 Budget (July 8, 2016), available at https: www.mass.gov/news/governor‐baker‐signs‐fiscal‐year‐2017‐ budget.
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anticommandeering principle of the Tenth Amendment as applied here to a federal funding requirement.
In the absence of any such Tenth Amendment concern, and in light of our holding that the challenged Certification Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), we conclude that the condition does not violate either the APA or the Constitution. Accordingly, we vacate the district court’s injunction prohibiting application of the Certification Condition.
3. The Notice Condition Is Statutorily Authorized by 8 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155
The challenged Notice Condition requires States and localities accepting Byrne grants to have in effect during the grant period a “statute, or a state rule, ‐regulation, ‐policy, or ‐practice” for their criminal detention facilities to respond “as early as practicable” to written requests from federal immigration authorities for notice of identified aliens’ scheduled release dates. Supra at 15–16 (quoting condition). The Attorney General’s statutory authority to impose this condition derives from 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155.
Section 10153(a)(4) requires a State or locality seeking Byrne funding to include in its application, “in such form as the Attorney General may require,” “[a]n assurance” that throughout the grant period, “the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.” Section 10153(a)(5)(C) requires a
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Byrne grant applicant to provide “[a] certification, made in a form acceptable to the Attorney General,” that “there has been appropriate coordination with affected agencies.” Section 10155 authorizes the Attorney General to “issue rules to carry out” these requirements and any other parts of the Byrne Program.
The district court did not discuss these statutory conditions. It concluded simply that the Notice Condition was not authorized by § 10102(a)(6), as DOJ maintained. The Third Circuit, however, did consider §§ 10153(a)(4) and 10153(a)(5)(C). It concluded that § 10153(a)(4) did not authorize the Notice Condition because “[its] data‐reporting requirement is expressly limited to ‘programmatic and financial’ information—i.e., information regarding the handling of federal funds and the programs to which those funds are directed. It does not cover Department priorities unrelated to the grant program.” City of Philadelphia v. Attorney Gen., 916 F.3d at 285. As for § 10153(a)(5)(C), the Third Circuit concluded that it did not authorize the Notice Condition because its “coordination requirement” operated only in the past tense, i.e, “to require certification that there was appropriate coordination in connection with the grantee’s application. This does not serve as a basis to impose an ongoing requirement to coordinate on matters unrelated to the use of grant funds.” Id. (emphases in original).
To explain why we conclude otherwise, we discuss each statutory requirement in turn.
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a. Section 10153(a)(4)’s Reporting Requirement
The plain language of § 10153(a)(4) authorizes the Attorney General to decide both what data, records, and information a Byrne grant recipient must maintain and report and the form of an applicant’s assurance that it will do so. This authority is cabined only by the parenthetical modifier “(programmatic and financial),” which serves to limit the referenced data, records, and information to those pertaining to the particular program being funded by a Byrne grant or to related financial matters. In this respect, at least, we agree with the Third Circuit. See id.
But unlike that court, we think the release information required by the Notice Condition is “programmatic,” at least for Byrne‐funded programs that relate in any way to the criminal prosecution, incarceration, or release of persons, some of whom will inevitably be aliens subject to removal.31 This includes most, if not all, of the programs for which plaintiffs seek Byrne funding, for example, (1) programs for task forces targeting certain crimes, the object of which is undoubtedly the arrest, prosecution, and eventual incarceration of perpetrators; (2) programs for prosecutors’ offices, whose attorneys decide when to pursue (or forego) the prosecution and incarceration
31 As this court observed in Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993), plaintiff “New York houses many illegal aliens in its prison system. As of March 1992, New York held approximately 60,000 prisoners in state correctional facilities, 8% of whom were known to be aliens and an additional 4% of whom were suspected to be aliens. Of this number, 6,096 had been convicted of aggravated felonies, making them subject to deportation.” Id. at 18. While the record on appeal does not provide current statistics, there is no reason to suspect a marked decline in these percentages.
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of criminal suspects; (3) programs for defenders’ offices, whose attorneys work to secure persons’ release from criminal detention and to avoid their conviction and incarceration; (4) diversion programs for persons who might otherwise remain in criminal custody; (5) programs for persons while incarcerated or for the facilities maintaining them; (6) programs for persons upon their release from incarceration. As to such programs, we conclude that the Attorney General is statutorily authorized by 8 U.S.C. § 10153(a)(4) to require Byrne grant recipients to report when identified aliens in their custody will be released.32
Insofar as the Notice Condition specifically requires a grant applicant to have a statute, rule, regulation, policy, or practice in place for its criminal detention facilities to report identified aliens’ release dates “as early as practicable” after receipt of a written federal request, we are satisfied that the requirement falls within the Attorney General’s authority to determine the “form” of an acceptable Byrne grant application, which necessarily includes the form of an acceptable assurance. 34 U.S.C. § 10153(a). That conclusion is reinforced by the Attorney General’s authority to “issue rules to carry out this part.” Id. § 10155. See generally Federal Election Campaign Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (“[D]eference should be presumptively afforded” to
32 Because plaintiffs have not sought to distinguish among their grant purposes in defending the challenged injunction and judgment, we have no occasion on this appeal to consider whether Byrne Program funding could be sought for a purpose so unrelated to prosecution, incarceration, or release that the Notice Condition would not be statutorily authorized in those circumstances.
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agency authorized to make rules in administering statute.); National Broad. Co. v. United States, 319 U.S. 190, 215, 219 (1943) (explaining that statute delegating authority, inter alia, to “[m]ake such rules and regulations . . . as may be necessary to carry out the provisions of this Act” gave agency “expansive powers” (internal quotation marks omitted)).
b. Section 10153(a)(5)(C)’s Coordination Requirement
Further statutory authority for the Notice Condition is supplied by § 10153(a)(5)(C)’s requirement for certification, in “a form acceptable to the Attorney General,” that “there has been appropriate coordination with affected agencies.” The Third Circuit observed that Congress’s use of the past tense in the quoted text signals that “appropriate coordination” must have occurred by the time a State or locality formally files its Byrne Program application. See City of Philadelphia v. Attorney Gen., 916 F.3d at 285. While we agree with that construction, we do not think that means the required coordination need not continue into the future. See id. Rather, we think appropriate coordination frequently, perhaps invariably, must determine future conduct.
The plain meaning of “coordination” is “the functioning of parts in cooperation and normal sequence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 502. “Coordination” strives to bring a “combination [of parts] in suitable relation for most effective or harmonious results.” Id. The definition does not describe a static concept that ends as soon as the suitable relation of parts and
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sequence of their operation is determined. Rather, coordination contemplates that relation and sequence are agreed upon in order to establish how parts will operate going forward to achieve effective and harmonious results.
The “parts” pertinent to § 10153(a)(5)(C)’s coordination requirement are the grant applicant and the agencies that will be affected by that grant. Thus, the certification required by § 10153(a)(5)(C) demands that, in advance of any Byrne award, States and localities coordinate with affected agencies to determine their relationship and sequence of conduct as necessary throughout the grant period to ensure effective and harmonious results.
Put more concretely, if a State were to seek Byrne Program funding for its State police to pursue a law enforcement initiative involving undercover operations across several municipalities, “appropriate coordination” might well require the State to reach an understanding with the affected localities as to how notice will be given to them when those undercover activities are occurring within their borders, thus ensuring that local authorities do not misidentify the State undercover officers as real criminals, with possibly tragic consequences for both sides. In sum, the parties reach an understanding about necessary coordination before the State files its formal Byrne grant application, and the parties’ conduct during the funding period is coordinated as thus agreed upon.
Similarly, were a State or locality to seek a Byrne grant to modernize equipment used to track terrorist threats, “appropriate coordination” might require the applicant to consult with other state
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and federal agencies engaged in similar tracking and to reach agreement as to the type of compatible equipment to be acquired and how obtained information will be shared and secured. Such coordination before formal application then determines the parties’ conduct after receipt of the grant.
So, here, when a State seeks Byrne funding for programs that relate to the prosecution, incarceration, or release of persons, some of whom will be removable aliens, there must be coordination with the affected federal agency, the Department of Homeland Security (“DHS”), before a formal application is filed, but what makes that coordination “appropriate” is that it will establish the parties’ relationship and the sequence of their conduct throughout the grant period.
To explain what makes DHS an affected agency, we begin with the ordinary and clear meaning of “affect,” which is to “produce a material influence upon.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 35; see BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “affect” to mean “to produce an effect on; to influence in some way”). The degree of influence need not be significant for the law to recognize that something has been “affected” in a range of contexts. See, e.g., Jones v. United States, 529 U.S. 848, 854 (2000) (holding that “statutory term ‘affecting . . . commerce,’ . . . when unqualified, signal[s] Congress’ intent to invoke its full authority under the Commerce Clause”); United States v. Wiant, 314 F.3d 826, 830 (6th Cir. 2003) (holding, in context of “affected a financial institution” that “breadth of [its] definition indicates that” word “affect” “is intended
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to encompass even minimal impacts”); United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 90 (2d Cir. 1999) (“The sum of what dictionaries say about the relevant meaning is that the verb ‘to affect’ expresses a broad and open‐ended range of influences.”).
When States use Byrne grants in ways related to the prosecution, incarceration, or release of aliens, the DHS Secretary’s performance of numerous statutory responsibilities with respect to such aliens is affected. For example, the Secretary must “begin any removal proceeding” for an alien convicted of a deportable offense “as expeditiously as possible after the date of the conviction,” 8 U.S.C. § 1229(d)(1); must effect the removal of such an alien “within . . . 90 days” after an order of removal becomes final, see id. § 1231(a)(1)(A)– (a)(1)(B)(i)–(ii); and must detain the alien during that 90‐day period, see id. § 1231(a)(2).33 The Secretary, however, “may not remove an alien who is sentenced to imprisonment”—whether by federal or State authorities—ʺuntil the alien is released.” Id. § 1231(a)(4)(A). In that case, the 90‐day removal period starts to run from the date of the alien’s release from custody. See id. § 1231(a)(1)(B)(iii).34 Moreover, in
33 While these statutory sections refer to the Attorney General, the removal responsibilities stated therein and in other statutory provisions referenced in this part of the opinion have been transferred to the Secretary of DHS. See 6 U.S.C. §§ 251(2), 552(d).
34 States are under no obligation to incarcerate criminal aliens convicted of state felony crimes, but if they do so, they may then request that the federal government either (1) pay “compensation . . . as may be appropriate” to the State “with respect to the incarceration” of the alien, or (2) “take the undocumented criminal alien into the custody of the Federal Government and incarcerate the alien.” 8 U.S.C.
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circumstances where a removable alien is released from custody before a final removal order has been obtained, the law authorizes the Secretary to issue a warrant for the alien’s arrest and detention, see id. § 1226(a), and (with limited exceptions) requires the Secretary to do so if the alien has a certain criminal history or has engaged in terrorist activities, see id. § 1226(c)(1), (2).35
As even this brief review makes plain, a removable alien’s State incarceration and release from incarceration will affect DHS’s performance of its own statutory duties throughout the grant period. In these circumstances, “appropriate coordination” requires that, by the time a State or locality files its Byrne grant application, it have reached an agreement with DHS as to their mutual relationship and sequence of conduct throughout the grant period. Any less coordination would not be “appropriate”; indeed, it would be meaningless.
§ 1231(i). It appears that, in 2017, plaintiff the State of New York received $13.9 million in such compensation pursuant to the SCAAP program referenced supra at 21. See Bureau of Justice Assistance, Fiscal Year 2017 SCAAP Award Details, available at https://bja.ojp.gov/program/state‐criminal‐alien‐assistance‐program‐ scaap/archives (last visited Feb. 24, 2020) (follow “FY 2017” hyperlink below “SCAAP Awards” subheading). 35 In 1992, New York attempted to sue federal authorities for failing to comply with a predecessor statute requiring them to take into custody, upon release, aliens convicted of aggravated felonies under state as well as federal law. See Cuomo v. Barr, 812 F. Supp. 324 (N.D.N.Y. 1993), appeal dismissed, 7 F.3d 17 (2d Cir. 1993).
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The Notice Condition serves to ensure such appropriate coordination. It advises States that, at the time they file a Byrne grant application, they must agree to respond as soon as practicable to a written DHS request for the release date of an identified State‐ incarcerated alien and to have a statute, rule, or policy in force throughout the grant period.
We conclude that the Attorney General is authorized to impose such a condition by § 10153(a)(5)(C), which empowers him to determine the acceptable form for certifying appropriate coordination. See supra at 37 (discussing dictionary definition of “form” as something requiring “specific information”).36 It is further supported by § 10155, which authorizes the Attorney General to issue rules for carrying out Byrne Program requirements. Of course, we recognize that plaintiffs would prefer not to coordinate at all with DHS, but that option is denied to them by § 10153(a)(5)(C) when the States seek Byrne grants for programs relating to prosecution, incarceration, or release that will affect DHS’s performance of its own statutory duties.
36 Where, as here, the affected agency is federal, the Attorney General can be expected to have particular insights into what coordination is appropriate to establish the relationship and sequence of conduct necessary for a grant applicant and the affected federal agency both to perform their respective duties in an effective and harmonious manner. But even where the affected agency is not federal, the Attorney General’s form‐ and rule‐authority may allow him to help parties resolve coordination disputes that surface after the application is made public but before it is approved. See 34 U.S.C. § 10153(a)(3)(B).
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In sum, we conclude that the Notice Condition is statutorily authorized by § 10153(a)(4)’s reporting requirement, § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐ making authority for Byrne Program applications relating to prosecution, incarceration, and release. That being the purpose for which plaintiffs have generally sought Byrne funding, we vacate the district court’s injunction barring any application of the Notice Condition.
4. The Access Condition Is Statutorily Authorized by 34 U.S.C. §§ 10153(a)(5)(C) and 10155
Title 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement and § 10155’s rule‐making provision also authorize the challenged Access Condition, and for much the same reason that they authorize the challenged Notice Condition. The Access Condition requires Byrne grant applicants to agree to have in place throughout the grant period a “statute, or a State rule, ‐regulation, ‐policy, or ‐practice” that ensures federal immigration officials “access” to State correctional facilities so that these officials can meet with detained aliens (or suspected aliens) to determine their legal status in this country. See supra at 16 (quoting condition).
As explained in discussing the Notice Condition, when States seek Byrne funding for programs related to the prosecution, incarceration, or release of persons, some of whom will inevitably be removable aliens, DHS is an “affected agency” for purposes of 34 U.S.C. § 10153(a)(5)(C). That is because a State’s incarceration of an alien requires DHS to delay acting on its own statutory obligations to
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arrest, detain, and remove certain aliens until the State releases the alien. See supra at 67–69. In such circumstances, coordination between the State and DHS is not only appropriate, but necessary, to allow the federal agency effectively to resume its obligations when the State has achieved its penal ones.
For DHS to be able to do so, it needs to ascertain not only when a removable alien will be released (the object of the Notice Condition), but also what aliens incarcerated by the State are removable. DHS does not ask the State to provide the latter information. Rather, it asks to be afforded access to State‐incarcerated aliens (or suspected aliens) so that DHS can itself ascertain their potential removability before release. That is what the challenged Access Condition ensures.37
Affording such access constitutes “appropriate coordination” in that it allows both the State seeking a Byrne grant for purposes relating to prosecution, incarceration, or release and an affected agency, DHS, to carry out their respective duties with respect to incarcerated aliens in an orderly sequence. Thus, as with the Notice Condition, we conclude that the Attorney General is statutorily authorized to impose the Access Condition pursuant to § 10153(a)(5)(C), which empowers him to determine the acceptable form for certifying appropriate coordination, and § 10155, which authorizes him to issue rules to carry out the coordination
37 What it does not ensure is that incarcerated aliens will then agree to talk with federal immigration authorities.
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requirement. Accordingly, we vacate the injunction prohibiting any application of the Access Condition.
II. The Attorney General’s Imposition of the Challenged Conditions Was Not Arbitrary and Capricious
Plaintiffs argue that, even if the Attorney General was statutorily authorized to impose the challenged conditions, the district court correctly concluded that it was arbitrary and capricious for him to do so here without considering the conditions’ negative consequences, particularly in undermining relationships between immigrant communities and local law enforcement. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 240–41. The conclusion does not withstand de novo review. See Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007) (holding that appeals court reviewing summary judgment award on APA claim examines “administrative record de novo without according deference to the decision of the district court”).
While agency action may be overturned as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem” at issue, Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), a court will not “lightly” reach that conclusion, Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151 (2d Cir. 2008) (citing approvingly to Patterson v. Caterpillar, Inc., 70 F.3d 503, 505 (7th Cir. 1995) (stating that court “must be very confident that the decisionmaker overlooked something important”)).
Here, DOJ did not overlook something important. As the district court acknowledged, DOJ was aware of the detrimental effects
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plaintiffs fear from the three challenged conditions. The court also acknowledged that the weight to be given these effects as compared to the conditions’ perceived benefits was at least arguable. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 241. The sole ground on which the district court concluded that DOJ arbitrarily and capriciously “ignored” these detrimental effects in imposing the challenged conditions was its failure to mention such effects in any proffered document. See id. (observing that documents “do not reflect that [DOJ] in any way considered whether jurisdictions’ adherence to the conditions would undermine trust and cooperation between local communities and government”).
In fact, there was no need for DOJ to discuss the relative detriments and benefits of the Certification Condition. That condition identifies a specific statute, 8 U.S.C. § 1373, as an “other applicable Federal law[]” for purposes of the statutory compliance certification requirement of 34 U.S.C. § 10153(a)(5)(D). Thus, the sole question for DOJ to decide was whether 8 U.S.C. § 1373 is an applicable law. Having made that decision—which we uphold, see supra at 35–61— nothing in the statute authorized DOJ to excuse a Byrne applicant from certifying its willingness to comply with an applicable federal law on a finding that the detrimental effects of compliance outweigh the benefits. Indeed, that would be particularly unwarranted here where the legislative history shows that Congress was itself aware of the very detrimental effects raised by plaintiffs when it enacted § 1373. See supra at 19 (quoting Senator Kennedy’s acknowledgment of mayors’ concerns that cooperating with immigration authorities could be counterproductive). Thus, DOJ’s failure to discuss
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detrimental effects does not show that it arbitrarily or capriciously imposed the Certification Condition.
As for the Notice and Access Conditions, these apply only to persons in State custody, i.e., persons found guilty beyond a reasonable doubt of charged crimes, or persons for whom there is at least probable cause to think that they committed crimes. Such conditions do not put law‐abiding undocumented aliens who have been crime victims or witnesses at risk of removal and, thus, should not dissuade such aliens from reporting crimes or cooperating in their investigation.38 Thus, it was hardly arbitrary or capricious for DOJ to impose these conditions without discussing detrimental effects that they were unlikely to cause.
Nor are we persuaded by plaintiffs’ further argument that the challenged conditions are arbitrary and capricious because DOJ failed
38 See City of Philadelphia v. Attorney Gen., 916 F.3d at 282 (citing Philadelphia’s rationale for policy limiting employee cooperation with federal immigration authorities: to “foster trust between the immigrant community and law enforcement,” which is “critical to reassure law‐abiding residents that contact with the City government will not lead to deportation” by federal authorities (internal quotation marks omitted)); City of Chicago v. Sessions, 888 F.3d at 279 (observing that “City recognized . . . maintenance of public order and safety required the cooperation of witnesses and victims, whether documented or not”); Michael R. Bloomberg, Mayor Michael R. Bloomberg Signs Executive Order 41 Regarding City Services For Immigrants (Sept. 17, 2003) (remarking in public speech that “[w]hen the parents of an immigrant child forego vaccination for fear of being reported to the federal immigration authorities, we all lose . . . . Likewise, we all suffer when an immigrant is afraid to tell the police that she has been the victim of a sexual assault or domestic violence”), available at https://www1.nyc.gov/office‐ of‐the‐mayor/news/262‐03/mayor‐michael‐bloomberg‐signs‐executive‐order‐41‐ city‐services‐immigrants.
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to “display awareness that it [was] changing position” and did not show “good reasons for the new policy.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (internal quotation marks omitted). DOJ did not change its position; rather, the Attorney General exercised his authority to have Byrne grant applicants satisfy the §§ 10153(a)(4), 10153(a)(5)(C), and 10153(a)(5)(D) requirements in a more specific form. Even if it was necessary to show “good reasons” for this decision, however, that is satisfied here by the 2016 IG Report’s findings of a significant, decade‐long decline in cooperation between local law enforcement officials and federal immigration authorities, some achieved through policies in tension with, if not actually violative of, 8 U.S.C. § 1373.
CONCLUSION
To summarize, we conclude as follows:
(1) The Attorney General was statutorily authorized to impose all three challenged conditions on Byrne grant applications. a. The Certification Condition (1) is statutorily authorized by 34 U.S.C. § 10153(a)(5)(D)’s requirement that applicants comply with “all other applicable Federal laws,” and (2) does not violate the Tenth Amendment’s anticommandeering principle; b. The Notice Condition is statutorily authorized by 34 U.S.C. § 10153(a)(4)’s reporting requirement, § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐making authority;
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c. The Access Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐making authority.
(2) The Attorney General did not overlook important detrimental effects of the challenged conditions so as to make their imposition arbitrary and capricious.
Accordingly,
(1) We REVERSE the district court’s award of partial summary judgment to plaintiffs;
(2) We VACATE the district court’s mandate ordering defendants to release withheld 2017 Byrne funds to plaintiffs, as well as its injunction barring defendants from imposing the three challenged immigration‐related conditions on such grants; and
(3) We REMAND the case to the district court, a. with directions that it enter partial summary judgment in favor of defendants on plaintiffs’ challenge to the three immigration‐related conditions imposed on 2017 Byrne Program grants; and b. insofar as there remains pending in the district court plaintiffs’ challenge to conditions imposed by defendants on 2018 Byrne Program grants, for further proceedings consistent with this opinion.
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: February 26, 2020

DC Docket #: 18-cv-6471

Docket #: 19-267cv

DC Court: SDNY (NEW YORK

Short Title: State of New York v. United States Department CITY)DC Docket #: 18-cv-6474

of Ju

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Ramos

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 19-267, Document 193-3, 02/26/2020, 2787114, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: February 26, 2020

DC Docket #: 18-cv-6471

Docket #: 19-267cv

DC Court: SDNY (NEW YORK

Short Title: State of New York v. United States Department CITY)DC Docket #: 18-cv-6474

of Ju

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Ramos

VERIFIED ITEMIZED BILL OF COSTS

Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature