Case: 3:18-cv-5146 As of: 04/09/2019 01:37 PM PDT 1 of 8
ADRMOPTERM,CLOSED,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−05146−WHO

City and County of San Francisco v. Jefferson B. Sessions, III et al Assigned to: Judge William H. Orrick Relate Case Case: 3:17−cv−00485−WHO Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 08/22/2018 Date Terminated: 03/04/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

City and County of San Francisco

represented by Dennis J. Herrera City Attorney for the City and County of San Francisco 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 415−554−4748 Fax: 415−554−3837 Email: cityattorney@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jennifer Eisenberg Office of the City Attorney of San Francisco Fox Plaza 1390 Market Street, 7th Fl. San Francisco, CA 94102 415−554−3857 Fax: 415−554−3985 Email: sara.eisenberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aileen Marie McGrath San Francisco City Attorney's Office 1390 Market Street 7th Floor San Francisco, CA 94102 415−554−4236 Email: Aileen.McGrath@sfcityatty.org ATTORNEY TO BE NOTICED

Ronald P. Flynn Office of the City Attorney Fox Plaza 1390 Market Street, Suite 425 San Francisco, CA 94102−5408 415−554−4708 Fax: 415−255−0733 Email: ronald.flynn@sfcityatty.org ATTORNEY TO BE NOTICED

Tara M. Steeley San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−4655 Fax: 415−554−4699 Email: tara.steeley@sfcityatty.org

Case: 3:18-cv-5146 As of: 04/09/2019 01:37 PM PDT 2 of 8
ATTORNEY TO BE NOTICED
Yvonne Rosil Mere Ofc City Attorney 1390 Market St, 7FL San Francisco, CA 94102 415−554−3874 Email: yvonne.mere@sfcityatty.org ATTORNEY TO BE NOTICED

V. Defendant Jefferson B. Sessions, III Attorney General of the United States
Defendant Laura L. Rogers Acting, Assistant Attorney General of the United States Defendant United States Department of Justice
Defendant Matt M. Dummermuth TERMINATED: 11/01/2018
Defendant Mathew Whitaker
Defendant William P. Barr
Amicus County of Santa Clara

represented by W. Scott Simpson U.S. Department of Justice, Civil Division 318 South Sixth Street, Room 244 Springfield, IL 62701 202−514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tara Carina Lundstrom Santa Clara County Counsel's Office 70 W Hedding St East Wing, 9th Floor San Jose, CA 95110 408−299−5900 Fax: 408−292−7240 Email: tara.lundstrom@cco.sccgov.org

Case: 3:18-cv-5146 As of: 04/09/2019 01:37 PM PDT 3 of 8 ATTORNEY TO BE NOTICED

Date Filed 08/22/2018
08/22/2018 08/22/2018
08/22/2018 08/22/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/24/2018 09/05/2018 09/10/2018 09/11/2018
09/11/2018

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400.00, receipt number 0971−12617782.). Filed by City and County of San Francisco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Civil Cover Sheet) (Herrera, Dennis) (Filed on 8/22/2018) Modified on 8/22/2018 (gbaS, COURT STAFF). (Entered: 08/22/2018)
2 Proposed Summons. (Herrera, Dennis) (Filed on 8/22/2018) (Entered: 08/22/2018)
3 Case assigned to Magistrate Judge Joseph C. Spero.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/5/2018. (as, COURT STAFF) (Filed on 8/22/2018) (Entered: 08/22/2018)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/23/2018. Initial Case Management Conference set for 11/30/2018 02:00 PM in San Francisco, Courtroom G, 15th Floor. (gbaS, COURT STAFF) (Filed on 8/22/2018) (Entered: 08/22/2018)
5 Summons Issued as to Laura L. Rogers, Jefferson B. Sessions, III, United States Department of Justice. (gbaS, COURT STAFF) (Filed on 8/22/2018) (Entered: 08/22/2018)
6 NOTICE of Appearance by Ronald P. Flynn Notice of Appearance of Counsel (Flynn, Ronald) (Filed on 8/23/2018) (Entered: 08/23/2018)
7 NOTICE of Appearance by Yvonne Rosil Mere Notice of Appearance of Counsel (Mere, Yvonne) (Filed on 8/23/2018) (Entered: 08/23/2018)
8 NOTICE of Appearance by Sara Jennifer Eisenberg Notice of Appearance of Counsel (Eisenberg, Sara) (Filed on 8/23/2018) (Entered: 08/23/2018)
9 NOTICE of Appearance by Tara M. Steeley Notice of Appearance of Counsel (Steeley, Tara) (Filed on 8/23/2018) (Entered: 08/23/2018)
10 CERTIFICATE OF SERVICE by City and County of San Francisco Proof of Service (Eisenberg, Sara) (Filed on 8/24/2018) (Entered: 08/24/2018)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City and County of San Francisco.. (Eisenberg, Sara) (Filed on 9/5/2018) (Entered: 09/05/2018)
12 ORDER RELATING CASE − This matter is found to be related to 3:17cv485−WHO. Signed by Judge William H. Orrick on 09/10/2018. (jmdS, COURT STAFF) (Filed on 9/10/2018) (Entered: 09/10/2018)
13 Case reassigned to Judge William H. Orrick. Magistrate Judge Joseph C. Spero no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (srnS, COURT STAFF) (Filed on 9/11/2018) (Entered: 09/11/2018)
14 CASE MANAGEMENT CONFERENCE ORDER − Case Management Conference set for 11/27/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 11/20/2018. Signed by Judge William H. Orrick on 09/11/2018. (jmdS, COURT STAFF) (Filed on 9/11/2018) (Entered: 09/11/2018)

Case: 3:18-cv-5146 As of: 04/09/2019 01:37 PM PDT 4 of 8

09/13/2018 09/27/2018 10/12/2018 10/16/2018 10/16/2018 11/01/2018 11/01/2018
11/01/2018 11/01/2018
11/20/2018 11/27/2018
12/03/2018 12/03/2018

15 CERTIFICATE OF SERVICE by City and County of San Francisco Proof of Service (Eisenberg, Sara) (Filed on 9/13/2018) (Entered: 09/13/2018)
16 CERTIFICATE OF SERVICE by City and County of San Francisco Updated Proof of Service (Eisenberg, Sara) (Filed on 9/27/2018) (Entered: 09/27/2018)
17 MOTION for Extension of Time to File Response/Reply as to 1 Complaint, filed by Jefferson B. Sessions, III, United States Department of Justice, Matt M. Dummermuth. (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Proposed Order)(Simpson, W.) (Filed on 10/12/2018) (Entered: 10/12/2018)
18 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order on Amendment of Complaints and Defendants' Responses to Amended Complaints filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 10/16/2018) (Entered: 10/16/2018)
19 ORDER by Judge William H. Orrick granting (18) Stipulation in case 3:18−cv−05146−WHO and (15) Stipulation in case 3:18−cv−05169−WHO. Plaintiffs shall have until November 1, 2018 to file an amended complaint in this action. Defendants' responses to the complaints shall be due on December 3, 2018. (jmdS, COURT STAFF) (Filed on 10/16/2018) (Entered: 10/16/2018)
20 Joint ADMINISTRATIVE MOTION Automatic Referral to the ADR Multi−Option Program Joint Administrative Motion for Relief from Automatic Referral to the ADR Multi−Option Program filed by City and County of San Francisco. Responses due by 11/5/2018. (Eisenberg, Sara) (Filed on 11/1/2018) (Entered: 11/01/2018)
21 Proposed Order re 20 Joint ADMINISTRATIVE MOTION Automatic Referral to the ADR Multi−Option Program Joint Administrative Motion for Relief from Automatic Referral to the ADR Multi−Option Program [Proposed] Order on Joint Administrative Motion for Relief from Automatic Referral to the ADR Multi−Option Program by City and County of San Francisco. (Eisenberg, Sara) (Filed on 11/1/2018) (Entered: 11/01/2018)
22 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELEIF; against City and County of San Francisco. Filed byCity and County of San Francisco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Herrera, Dennis) (Filed on 11/1/2018) Modified on 11/2/2018 (aaaS, COURT STAFF). (Entered: 11/01/2018)
23 ORDER ON JOINT ADMINISTRATIVE MOTION FOR RELIEF FROM AUTOMATIC REFERRAL TO THE ADR MULTI−OPTION PROGRAM by Judge William H. Orrick granting (20) Administrative Motion in case 3:18−cv−05146−WHO. Associated Cases: 3:18−cv−05146−WHO, 3:18−cv−05169−WHO (jmdS, COURT STAFF) (Filed on 11/1/2018) (Entered: 11/01/2018)
24 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 11/20/2018) (Entered: 11/20/2018)
25 Minute Entry for proceedings held before Judge William H. Orrick: Case Management Conference held on 11/27/2018. Briefing schedule set and Motion Hearing on anticipated motion to enforce judgment scheduled for 12/21/2018 10:00 AM. Briefing schedule set and Motion Hearing on competing dispositive motions scheduled for 2/13/2019 02:00 PM. (Both hearings to be conducted in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick.) FTR Time: 2:09−2:32. (jmdS, COURT STAFF) (Date Filed: 11/27/2018) (Entered: 11/27/2018)
26 NOTICE by Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker of Filing of Administrative Record (Attachments: # 1 Admin. Record Part 1, # 2 Admin. Record Part 2, # 3 Admin. Record Part 3, # 4 Admin. Record Part 4)(Simpson, W.) (Filed on 12/3/2018) (Entered: 12/03/2018)
27 MOTION to Dismiss (Partial), MOTION for Summary Judgment (Partial) filed by Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. Motion Hearing set for 2/13/2019 02:00 PM in San Francisco, Courtroom 02, 17th

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12/04/2018 12/19/2018 12/21/2018
12/21/2018
12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018

Floor before Judge William H. Orrick. Responses due by 12/21/2018. Replies due by 1/14/2019. (Attachments: # 1 Defendants' Request for Judicial Notice, # 2 Proposed Order)(Simpson, W.) (Filed on 12/3/2018) (Entered: 12/03/2018)
28 Clerk's Notice of Video Recording Request. Video Camera hearings set for 12/21/2018 10:00 AM and 2/13/2019 02:00 PM. Objections to Video Recording due 12/11/2018. (jmdS, COURT STAFF) (Filed on 12/4/2018) (Entered: 12/04/2018)
29 Clerk's Notice CONSENTING TO Video Recording of hearing re: 155 Motion to Enforce in Case No. 17−cv−4701−WHO. (jmdS, COURT STAFF) (Filed on 12/19/2018) (Entered: 12/19/2018)
30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed by City and County of San Francisco. Motion Hearing set for 2/13/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 1/4/2019. Replies due by 1/11/2019. (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
31 Request for Judicial Notice re 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
32 Declaration of LEO CHYI in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
33 Declaration of SHERIFF VICKI HENNESSY in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
34 Declaration of SARA J. EISENBERG in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
35 Declaration of MATTHEW JERZYK in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
36 Declaration of FRANCIS X. WRIGHT, JR. in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San

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12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/27/2018

Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
37 Declaration of TRACY REEVE in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
38 Declaration of JEANNIE SPRINGER in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
39 Declaration of KENNY F. PITTMAN in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
40 Declaration of CITY OF MINNEAPOLIS in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
41 Declaration of DELIA ROLLINS MUHAMMAD in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
42 Declaration of SARITA NAIR in Support of 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT filed byCity and County of San Francisco. (Related document(s) 30 ) (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
43 Proposed Order re 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT by City and County of San Francisco. (Eisenberg, Sara) (Filed on 12/21/2018) (Entered: 12/21/2018)
44 NOTICE by Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker re 26 Notice (Other), Notice of Lodging (Simpson, W.) (Filed on 12/21/2018) (Entered: 12/21/2018)
45 Clerk's Notice CONSENTING TO Video Recording of Motion Hearing set for 2/13/2019 in Cases 3:18−cv−05169−WHO and 3:18−cv−05146−WHO. (jmdS, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)

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12/27/2018 12/28/2018 01/02/2019 01/08/2019 01/08/2019 01/16/2019
01/16/2019 01/30/2019
01/30/2019 02/13/2019 02/14/2019 02/19/2019 02/19/2019 03/01/2019

46 MOTION to Stay Proceedings in Light of Lapse of Appropriations filed by Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. Responses due by 1/10/2019. Replies due by 1/17/2019. (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Proposed Order)(Simpson, W.) (Filed on 12/27/2018) (Entered: 12/27/2018)
47 ORDER REGARDING AMICUS BRIEFING. Signed by Judge William H. Orrick on 12/28/2018. (jmdS, COURT STAFF) (Filed on 12/28/2018) (Entered: 12/28/2018)
48 ORDER by Judge William H. Orrick denying (46) Motion to Stay in case 3:18−cv−05146−WHO; denying (33) Motion to Stay in case 3:18−cv−05169−WHO. (jmdS, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
49 STIPULATION WITH PROPOSED ORDER re 24 Case Management Statement filed by Matt M. Dummermuth, United States Department of Justice, Mathew Whitaker. (Simpson, W.) (Filed on 1/8/2019) (Entered: 01/08/2019)
50 ORDER granting 49 Stipulation extending briefing schedule re 30 MOTION for Summary Judgment. Response due by 1/16/2019. Reply due by 1/30/2019.Signed by Judge William H. Orrick on 1/8/2019. (jmdS, COURT STAFF) (Filed on 1/8/2019) (Entered: 01/08/2019)
51 OPPOSITION/RESPONSE (re 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT ) filed byMatt M. Dummermuth, United States Department of Justice, Mathew Whitaker. (Simpson, W.) (Filed on 1/16/2019) (Entered: 01/16/2019)
52 REPLY (re 27 MOTION to Dismiss (Partial) MOTION for Summary Judgment (Partial) ) filed byMatt M. Dummermuth, United States Department of Justice, Mathew Whitaker. (Simpson, W.) (Filed on 1/16/2019) (Entered: 01/16/2019)
53 REPLY (re 30 MOTION for Summary Judgment CITY AND COUNTY OF SAN FRANCISCOS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT ) City and County of San Francisco's Reply in Support of Motion for Summary Judgment filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 1/30/2019) (Entered: 01/30/2019)
54 MOTION for Leave to File Brief of Amici Curiae filed by County of Santa Clara. (Attachments: # 1 Exhibit)(Lundstrom, Tara) (Filed on 1/30/2019) (Entered: 01/30/2019)
56 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 2/13/2019. Multiple motions heard. Motions taken under submission; written order to follow. Total Time in Court: 49 minutes. Court Reporter: Debra Pas. (jmdS, COURT STAFF) (Date Filed: 2/13/2019) (Entered: 02/18/2019)
55 TRANSCRIPT ORDER for proceedings held on 02/13/2019 before Judge William H. Orrick by City and County of San Francisco, for Court Reporter Debra Pas. (Eisenberg, Sara) (Filed on 2/14/2019) (Entered: 02/14/2019)
57 Request for Judicial Notice Joint Supplemental Request for Judicial Notice re: Plaintiff's Motion for Summary Judgment and Defendants' Motions to Dismiss and for Partial Summary Judgment filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 2/19/2019) (Entered: 02/19/2019)
58 NOTICE of Appearance by Aileen Marie McGrath Notice of Appearance of Counsel (McGrath, Aileen) (Filed on 2/19/2019) (Entered: 02/19/2019)
59 Transcript of Proceedings held on 2−13−2019, before Judge William H. Orrick. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431−1477/Email:

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03/04/2019 03/14/2019 03/22/2019
03/26/2019

Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (55 in 3:18−cv−05146−WHO) Transcript Order, (43 in 3:18−cv−05169−WHO) Transcript Order ) Release of Transcript Restriction set for 5/30/2019. (pasdl50S, COURT STAFF) (Filed on 3/1/2019) (Entered: 03/01/2019)
60 ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 3/4/3019. (jmdS, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)
61 STIPULATION WITH PROPOSED ORDER re 60 Order Dismissing Case filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. (Simpson, W.) (Filed on 3/14/2019) (Entered: 03/14/2019)
62 Order by Judge William H. Orrick granting (61) Stipulation in case 3:18−cv−05146−WHO and associated case 3:18−cv−05169−WHO. The deadline to submit either a stipulated form or judgment or competing judgments is extended by one week to March 25, 2019. (jmdS, COURT STAFF) (Filed on 3/22/2019) (Entered: 03/22/2019)
63 JUDGMENT AND ORDER GRANTING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT by Judge William H. Orrick in case 3:18−cv−05146−WHO; granting (50) Stipulation in case 3:18−cv−05169−WHO. Associated Cases: 3:18−cv−05169−WHO, 3:18−cv−05146−WHO(jmdS, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)

 
 Case 3:18-cv-05146-JCS Document 1 Filed 08/22/18 Page 1 of 31

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 TARA M. STEELEY, State Bar #231775

SARA J. EISENBERG, State Bar #269303

6 AILEEN M. McGRATH, State Bar #280846 Deputy City Attorneys

7 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

8 San Francisco, California 94102-4602

Telephone: (415) 554-4748

9 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

10 Attorneys for Plaintiff

11 CITY AND COUNTY OF SAN FRANCISCO

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

CITY AND COUNTY OF SAN

Case No. 18-5146

16 FRANCISCO,

COMPLAINT FOR DECLARATORY AND

17

Plaintiff,

INJUNCTIVE RELIEF

18

vs.

19 JEFFERSON B. SESSIONS III, Attorney General of the United States, LAURA L.
20 ROGERS, Acting Assist. Attorney General of the United States, UNITED STATES
21 DEPARTMENT OF JUSTICE, DOES 1-100,

22

Defendants.

23

24

25

26

27

28
Complaint; CCSF v. Sessions Case No. 18-5146

N:\CXLIT\LI2018\190133\01299103.docx

Case 3:18-cv-05146-JCS Document 1 Filed 08/22/18 Page 2 of 31

1

INTRODUCTION

2

1. During his campaign, President Trump pledged to end federal funding to sanctuary

3 cities. Despite the determination by these cities that their sanctuary laws and policies make their own

4 communities safer, healthier and stronger, his Administration has spent more than eighteen months

5 trying to coerce them to abandon those laws and policies by threatening to defund them. The Trump

6 Administration’s two attempts to do so have been rebuffed by the federal courts.

7

2. First, President Trump signed an executive order directing the Attorney General and

8 Secretary of Homeland Security to ensure that “sanctuary jurisdictions” did not receive federal

9 funds. A court in this district struck it down. Next, the Department of Justice (“DOJ”) attempted to

10 impose immigration-related requirements on FY 2017 Byrne JAG funds. Every single court that has

11 examined the validity of these requirements has found them to be unconstitutional.

12

3. DOJ’s latest effort should fare no better. DOJ recently announced that it is again

13 attempting to coerce sanctuary jurisdictions into changing their laws and policies by imposing

14 unconstitutional requirements on important criminal justice grant funding. Some of the new

15 requirements DOJ has imposed on the FY 2018 Byrne JAG funds (e.g., those that require jurisdictions

16 to give immigration authorities both unfettered access to their jails and 48 hours’ notice before

17 releasing an individual believed to be in the country illegally) are nothing more than repackaged

18 versions of the FY 2017 requirements that courts across the country have struck down. But others go

19 much further. Indeed, the new requirements cast a threatening pall over sanctuary jurisdictions by

20 implying that they may be violating federal criminal laws simply by having laws or policies that limit

21 entanglement with federal immigration policies.

22

4. These extortive requirements are unlawful. As a threshold matter, DOJ lacks the

23 statutory authority to impose them. The Constitution establishes a balance of power between the state

24 and federal governments, as well as among the coordinate branches of federal government, to prevent

25 the excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse

26 from any government office. An executive branch agency of the federal government may not seize for

27 itself the power that the Constitution reserves for Congress. Nor may it intrude on authority that the

28 Constitution has preserved for state and local governments. The FY 2018 grant requirements violate

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1 both of these precepts. DOJ is improperly attempting to wield powers that only Congress is entitled to

2 invoke, and is seeking to compel San Francisco to bend its considered policy judgments, which the

3 Constitution allows it to make for its community, to the federal government’s will.

4

5. And even if DOJ has the authority to impose some conditions on the FY 2018 Byrne

5 JAG funds, each of the Challenged Requirements at issue here relating to federal immigration

6 enforcement would still be unlawful under other constitutional limits. Those limits prevent DOJ from

7 requiring compliance with the funding requirements because (1) they leave localities unclear about

8 how to comply with each of the requirements, and (2) they lack a nexus between the congressionally

9 mandated purpose of Byrne JAG funds and immigration enforcement.

10

6. San Francisco faces the immediate prospect of losing over $1.4 million in this fiscal

11 year if it does not receive FY 2018 Byrne JAG funds. San Francisco uses these funds for a variety of

12 important law enforcement purposes, including programs designed to reduce recidivism, provide

13 alternative forms of prosecution, or enable drug treatment for underserved populations.

14

7. San Francisco faces an unacceptable choice that is precisely what the Trump

15 Administration wishes it to have: either comply with DOJ’s unconstitutional new grant conditions and

16 abandon local policies that San Francisco adopted to promote public safety and foster trust and

17 cooperation between law enforcement and the public; or, maintain these policies but forfeit critical

18 funds that it relies on to provide essential services to San Francisco residents.

19

8. San Francisco is not obligated to enforce federal immigration law. San Francisco seeks

20 declaratory and injunctive relief to ensure that San Francisco and other sanctuary jurisdictions

21 continue to be eligible for these funds, instead of being coerced into accepting conditions that on their

22 face violate bedrock constitutional principles of separation of powers, as well as constitutional

23 vagueness and germaneness restrictions on grant requirements.

24

JURISDICTION AND VENUE

25

9. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

26 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201(a) and 2202

27 et seq.

28 //
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1

10. Venue properly lies within the Northern District of California because Plaintiff,

2 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

3 rise to this action occurred in this District. 28 U.S.C. §1391(e)(1).

4

INTRADISTRICT ASSIGNMENT

5

11. Assignment to the San Francisco or Oakland Division of this District is proper pursuant

6 to Civil Local Rule 3-2(c)-(d) because a substantial part of the acts or omissions that give rise to this

7 action occurred in the City and County of San Francisco.

8

PARTIES

9

12. Plaintiff San Francisco is a municipal corporation organized and existing under and by

10 virtue of the laws of the State of California, and is a charter city and county.

11

13. Defendant Jefferson B. Sessions III is the Attorney General of the United States. He is

12 sued in his official capacity. The Attorney General is the federal official leading the DOJ, which is

13 responsible for the governmental actions at issue in this lawsuit.

14

14. Defendant Laura L. Rogers is Acting Assistant Attorney General of the United States in

15 charge of the Office of Justice Programs, which administers Byrne JAG funding. She is sued in her

16 official capacity.

17

15. Defendant DOJ is an executive department of the United States of America that is

18 responsible for administering the Byrne JAG program.

19

16. Doe 1 through Doe 100 are sued under fictitious names. Plaintiff San Francisco does

20 not now know the true names or capacities of said Defendants, who were responsible for the alleged

21 violations, but pray that the same may be alleged in this complaint when ascertained.

22

FACTUAL ALLEGATIONS

23 I. The Byrne JAG Program Provides Important Criminal Justice Funds To San Francisco.

24

A. The Byrne JAG Program.

25

17. The Byrne JAG program is “the leading source of federal justice funding to state and

26 local jurisdictions.” Office of Justice Programs, Welcome to BJA’s Edward Byrne Memorial

27 Assistance Grant (JAG) Program, https://www.bja.gov/jag/ (last visited August 20, 2018). The

28 program provides state and local governments with “critical funding necessary to support a range of

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1 program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and

2 education, corrections and community corrections, drug treatment and enforcement, . . . crime victim

3 and witness initiatives and mental health programs.” Id.

4

18. The program is structured as a formula grant, awarding funds to all eligible grantees

5 according to a prescribed metric. Unlike discretionary grants, which agencies award under agency

6 discretion, “‘formula’ grants . . . are not awarded at the discretion of a state or federal agency, but are

7 awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088

8 (9th Cir. 1989). Specifically, the Bureau of Justice Assistance (“BJA”)—a department within Office

9 of Justice Programs (“OJP”)—awards Byrne JAG funds to all eligible grantees in amounts based on

10 Bureau of Justice Statistics (“BJS”) calculations derived from the Byrne JAG statutory formula. See

11 34 U.S.C. § 10156(d)(2)(A) (providing that the Attorney General “shall allocate to each unit of local

12 government” funds consistent with the established formula) (emphasis added).

13

19. The formula for state allocations is a function of population and violent crime. See id.

14 § 10156(a). For local governments, the allocation is based on the state’s allocation and the ratio of

15 violent crime in the locality to violent crime in the state. See id. § 10156(d). For example, in FY

16 2018, California’s total allocation is $28.9 million. Of this, $17.4 million (60 percent) is allocated to

17 the State (see id. § 10156(b)-(d))—but a minimum of 62.9 percent of these funds must be passed 18 through to local jurisdictions.1 The other $11.6 million (40 percent) is allocated for direct grants to

19 local jurisdictions. See id. § 10156(b)-(d).

20

20. Congress imposed only a limited number of requirements on Byrne JAG applicants.

21

21. First, Congress has required applicants to supply information about their intended use

22 of grant funding, to demonstrate that they will spend the money on programs supporting one of the

23 eight statutory purpose areas. See 34 U.S.C. § 10153(a)(2) & (a)(5)(A)-(C). Those purpose areas are:

24 (1) law enforcement, (2) prosecution and courts, (3) prevention and education, (4) corrections and

25

26

1 U.S. Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant (JAG) Program

Frequently Asked Questions (FAQs)–Updated August 2017, at 2,

27 https://www.bja.gov/Funding/JAGFAQ.pdf; see also U.S. Dep’t of Justice, FY 2014 Justice

Assistance Grant (JAG) Program Variable Pass-through (VPT) Percentages,

28 https://www.bja.gov/Funding/JAGvpt.pdf.

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1 community corrections, (5) drug treatment, (6) planning, evaluation, and technology improvement, (7)

2 crime victim and witness programs, and (8) mental health programs, including behavioral programs

3 and crisis intervention. 34 U.S.C. § 10152(a)(1)(A)-(H). None of these program purposes include

4 federal immigration enforcement.

5

22. Second, Congress requires applicants to maintain and be prepared to report information

6 demonstrating that they possess programmatic and financial integrity. Id. § 10153(a)(4).

7

23. Finally, Congress requires applicants to “certif[y]” that they “will comply with all

8 provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D).

9

24. Not one of these requirements relates to immigration. Indeed, over a decade ago,

10 Congress removed the only requirement in the Byrne JAG statute that touched on immigration-related

11 issues. In 2006, Congress specifically eliminated a funding requirement that recipients make “[a]n

12 assurance that the State has established a plan under which the State will provide without fee to the

13 Immigration and Naturalization Service, within 30 days of the date of their conviction, notice of

14 conviction of aliens who have been convicted of violating the criminal laws of the State and under

15 which the State will provide the Service with the certified record of such a conviction within 30 days

16 of the date of a request by the Service for such record.” 42 U.S.C. § 3753(a)(11) (2002).

17

25. Given the limited discretion Congress has bestowed upon DOJ under the Byrne JAG

18 statute for these formula grants, the Attorney General has no authority to withhold or reduce federal

19 grant funding a state or local government is entitled to receive. DOJ officials acknowledged as much

20 in the recent past, when then-Assistant Attorney General Peter Kadzik wrote a letter to Senator

21 Richard Shelby regarding the Senator’s request that DOJ tie federal grant funding to federal

22 immigration priorities. Kadzik stated that DOJ could not do so because “many Department grant

23 funds are formula based” such that “the Department does not have the discretion to suspend funding at

24 all.”2

25 //

26 //

27 2 Defendants’ Administrative Record, City and County of San Francisco v. Sessions, No. 3:17-
28 cv-4642-WHO (“San Francisco v. Sessions”) (N.D. Cal. Mar. 23, 2018), Dkt. No. 84-2 at AR00113.

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1

B. San Francisco Uses Byrne JAG Funding To Support Important City Programs.

2

26. The San Francisco Department of Children, Youth and their Families (“DCYF”)

3 applies for local Byrne JAG funds and state pass-through funds on behalf of the City. DCYF keeps a

4 portion of the grant and also administers grant funds to the following departments: the Adult Probation

5 Department, District Attorney, Public Defender, Police Department, and Sheriff. DCYF also passes

6 through funds from the local grant to the San Francisco Superior Court and a third party evaluator.

7

27. Before FY 2017, San Francisco received state and local Byrne JAG funds every year

8 for well over a decade.

9

28. San Francisco submitted its FY 2017 Byrne JAG application on September 5, 2017, but

10 OJP has not yet taken action on it.3

11

29. San Francisco submitted its FY 2018 Byrne JAG application on August 21, 2018.

12

30. For FY 2018, San Francisco is entitled to a direct Byrne JAG formula grant of

13 $489,966. San Francisco also expects to receive a state pass-through of Byrne JAG funds in the

14 amount of $941,915.

15

31. Consistent with the Byrne JAG statute, San Francisco uses its Byrne JAG funds to

16 support critical law enforcement programs designed to reduce criminal behavior and improve public

17 safety. Specific programs funded with this grant include: (1) Law Enforcement Assisted Diversion, an

18 innovative approach that seeks to accomplish the goals of reduced criminal behavior and improved

19 public safety by connecting appropriate low-level drug offenders with services; (2) Focused Drug

20 Deterrence, short and long term proactive activities including targeted investigations and enforcement

21 and social network analysis to increase the identification of individuals involved in high-level drug

22 markets; (3) Drug Court Prosecution, which seeks to connect criminal defendants who suffer from a

23

24

3 DOJ has, on information and belief, awarded FY 2017 Byrne JAG grants to hundreds of other

jurisdictions—“jurisdictions that share the Department’s commitment to keeping criminal aliens off

25 our streets and our law abiding citizens safe.” Press Release, U.S. Dep’t of Justice, DOJ Releases

FY17 JAG Funding (June 27, 2018)

26 https://content.govdelivery.com/accounts/USDOJOJP/bulletins/1fa6e57. DOJ has stated that

“[r]eviews of some applications remain ongoing.” Id. In litigation, DOJ has stated that it is

27 withholding FY 2017 Byrne JAG awards from states and localities, like San Francisco, whose

compliance with Section 1373 is under review. Decl. of Marilyn Atsatt at ¶¶ 3-4, San Francisco v.

28 Sessions, Dkt. No. 113-3.

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1 substantial substance abuse problem to treatment services in the community in order to enhance public

2 safety, reduce recidivism, and find appropriate dispositions to the criminal charges; (4) Targeted Drug

3 Treatment for Underserved Populations, a treatment intervention conducted by the Sheriff’s

4 Department for individuals in custody; (5) Intensive Probation Supervision, a targeted caseload of

5 probationers with substance abuse and/or mental health issues; (6) Reentry Social Work through the

6 Public Defender’s Office, which provides legal and wraparound support to help indigent clients

7 charged with felony drug cases and other felony offenses successfully exit the criminal justice system;

8 and (7) Citywide Justice-Involved Youth Planning, which examines current criminal justice trends

9 impacting youth and young adults and strengthens partnerships and collaboration at various levels to

10 create a continuum of support for youth and young adults.

11

32. San Francisco uses Byrne JAG pass-through funds to support a Young Adult Court

12 aimed at reducing recidivism for youth ages 18-25. This Court was designed in response to a growing

13 body of neuroscience research showing that young adults are fundamentally different from both

14 juveniles and older adults in how they process information and make decisions. Our traditional justice

15 system is not well-equipped to address cases involving these individuals, who are qualitatively

16 different in development, skills, and needs from both children and older adults. The Young Adult

17 Court fills this gap by providing case management and other support for eligible young adult offenders

18 from high-risk backgrounds.

19

33. These City programs span six departments, and a total of approximately ten full-time

20 equivalent positions for these programs are funded with Byrne JAG funds. Without local and state

21 Byrne JAG funds, San Francisco could be forced to reduce or eliminate these programs, including

22 eliminating staff positions, unless other funding sources could be identified.

23 II. 24

The Trump Administration Has Engaged In Ongoing Attempts To Coerce Sanctuary Jurisdictions To Change Their Policies By Threatening To Withhold Federal Funding.

25

34. Despite the Byrne JAG program being a formula grant—which means that Congress

26 alone can decide who receives federal funding, and how much—and in disregard of the important

27 local purposes that Byrne JAG funding serves, President Trump’s Administration has engaged in a

28 longstanding campaign to unlawfully withhold federal funding from so-called sanctuary jurisdictions.

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1 The Attorney General has furthered this effort by adding an ever-expanding set of immigration-related

2 requirements to Byrne JAG funding. These requirements are designed to coerce state and local

3 jurisdictions to participate in enforcing federal immigration law and abandon any state or local policies

4 that limit or prohibit such participation. That is, the requirements aim to eradicate sanctuary cities,

5 consistent with President Trump’s longstanding threats.

6

A. President Trump First Attempted To Act By Executive Fiat.

7

35. San Francisco is one of many jurisdictions across the country that has enacted sanctuary

8 policies that seek to promote public safety locally and build trusting and supportive relationships with 9 immigrant communities. Many jurisdictions believe—and studies have shown4—that communities are

10 stronger, healthier, and safer when state and local employees decline to participate in the federal

11 government’s responsibility to enforce federal immigration law.

12

36. Nevertheless, the Trump Administration has made it their mission to eradicate

13 sanctuary cities. President Trump frequently promised to “defund” sanctuary cities, and to use the

14 threat of withholding federal funds as “a weapon” to coerce local jurisdictions to change their 15 policies.5 Shortly after President Trump took office, his press secretary confirmed that “[w]e are going

16 to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants. The

17 American people are no longer going to have to be forced to subsidize this disregard for our laws.”6

18

37. The Attorney General echoed this position. Soon after taking office, the Attorney

19 General suggested that he would use every means necessary to withhold federal funding from 20 “sanctuary cities.”7 He has broadly described sanctuary city “policies” as those requiring local law

21

4 See Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR

22

AM. PROGRESS (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-

23

sanctuary-policies-on-crime-and-the-economy/ (concluding that crime rates in sanctuary counties are statistically significantly lower than crime rates in non-sanctuary counties).

24

5 Alexander Mallin and Lissette Rodriguez, Trump Threatens Defunding Sanctuary Cities as

‘Weapon’, ABC News (Feb. 5, 2017), http://abcnews.go.com/Politics/trump-threatens-%20defunding-

25 sanctuary-states-weapon/story?id=45286642.

26

6 The White House, 1/25/17: White House Press Briefing, YouTube (Jan. 25, 2017), https://www.youtube.com/watch?v=OaPriMVvtZA.

27

7 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks on

Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

28 sessions-delivers-remarks-sanctuary-jurisdictions.

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1 enforcement officials to “refuse to cooperate with federal immigration authorities regarding illegal 2 aliens who commit crimes.”8

3

38. The Administration tried to carry through on these threats during President Trump’s

4 first week in office. President Trump issued Executive Order 13,768, which called for denying all

5 federal funding to sanctuary jurisdictions and further authorized the Attorney General to take

6 unspecified enforcement action against sanctuary cities.

7

39. The Administration touted the Executive Order as a means to achieving the President’s

8 goal of “ending sanctuary cities . . . . [T]he President has been very clear through his executive order

9 that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary 10 cities.”9 The Administration vowed that “the President is going to do everything he can within the

11 scope of the executive order to make sure that cities who don’t comply with it—counties and other

12 institutions that remain sanctuary cities don’t get federal government funding in compliance with the 13 executive order.”10

14

40. The Administration’s efforts here were stopped by a court in this district, which

15 permanently enjoined Section 9(a) of the Executive Order for violating the Constitution. City and

16 County of San Francisco v. Donald J. Trump, 275 F. Supp. 3d 1196, 1219 (N.D. Cal. 2017). The court

17 held, inter alia, that the President—and in turn, the Attorney General and the Secretary of DHS—

18 lacked the authority “to place a new condition on federal funds . . . not authorized by Congress,” and

19 thus had violated the “fundamental constitutional structure” of the separation of powers. Id. at 1213.

20 And the court further held that even if the executive branch could exercise that spending power, the

21 Executive Order was unconstitutional because it (1) used vague language that left localities unclear

22

23

8 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks in Las

Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to Combat

24 Violent Crime (July 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-

delivers-remarks-las-vegas-federal-state-and-local-law.

25

9 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

26

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/briefingsstatements/press-briefing-press-secretary-sean-spicer-020117/.

27

10 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), https://www.whitehouse.gov/briefings-

28 statements/press-briefing-press-secretary-sean-spicer-020817/.

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1 how to comply with the funding conditions; (2) lacked any nexus between the funds at issue and

2 immigration enforcement; and (3) sought to compel local governments to “adopt certain policies” that

3 they had determined, in their considered judgment, to be unwise. Id. at 1214–16.

4

41. The Ninth Circuit Court of Appeals upheld substantially all of the district court’s order.

5 City and County of San Francisco v. Trump, No. 17-17478, 2018 WL 3637911 (9th Cir. Aug. 1,

6 2018). The Ninth Circuit affirmed that “[t]he Separation of Powers was an integral part of the

7 Founders’ design.” Id. at *2. And it found that “the Administration has not even attempted to show

8 that Congress authorized it to withdraw federal grant moneys from jurisdictions that do not agree with

9 the current Administration’s immigration strategies.” Id. at *4. It therefore upheld the district court’s

10 judgment in favor of San Francisco on the merits. Id. The Ninth Circuit remanded the cases for

11 additional factual findings about the proper scope of relief. Id. at *13.

12

B. The Attorney General Unilaterally Imposes Immigration-Related Requirements

13

On The FY 2017 Byrne JAG Program.

14

42. With its initially broad efforts to withhold federal funds to sanctuary cities put in check

15 by the courts, the Administration adopted a more targeted approach focusing on the Byrne JAG

16 program and similar grant programs that DOJ administers. As relevant here, the Attorney General

17 unilaterally imposed three new immigration-related requirements on the 2017 Byrne JAG awards—

18 requirements designed to coerce Byrne JAG recipients into enforcing federal immigration law.

19

43. First, the FY 2017 Byrne JAG Local Solicitation provided that OJP would require

20 grant applicants to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release

21 date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take

22 custody of the alien under the Immigration and Nationality Act.” FY 2017 Local Solicitation at 30

23 (attached as Exh. 1).

24

44. In the FY 2017 award documents that DOJ eventually issued, DOJ expanded on this

25 requirement (the “FY 2017 Notice Requirement”), explaining that:

26

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

27

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

28

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1

such facility, then such facility will honor such request and—as early as practicable

(see para. 4.B. of this condition)—provide the requested notice to DHS.

2

3 Decl. of Alan Hanson at ¶¶ 5-6 & Exh. B at 18, San Francisco v. Sessions, Dkt. No. 46-1 (“Hanson

4 Decl.”).

5

45. Second, the FY 2017 Local Solicitation provided that OJP would require grant

6 applicants to “permit personnel of the U.S. Department of Homeland Security (DHS) to access any

7 correctional or detention facility in order to meet with an alien (or an individual believed to be an

8 alien) and inquire as to his or her right to be or remain in the United States.” FY 2017 Local

9 Solicitation at 30 (attached as Exh. 1).

10

46. In the FY 2017 award documents, DOJ described this requirement regarding access to

11 correctional facilities (the “FY 2017 Access Requirement”) as requiring that:

12

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

13

color of federal law in fact are given to access any State (or Statecontracted) correctional facility for the purpose of permitting such agents to

14

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

15

States.

16 Hanson Decl. at ¶¶ 5-6 & Exh. B at 18.

17

47. Third, DOJ stated that it would require jurisdictions to certify their compliance with

18 8 U.S.C. Section 1373, which provides that a “local government entity or official may not prohibit, or

19 in any way restrict, any government entity or official from sending to, or receiving from, [federal

20 immigration officials] information regarding the citizenship or immigration status . . . of any

21 individual.” 8 U.S.C. § 1373(a). Although DOJ’s move toward requiring jurisdictions to certify

22 compliance with this section had been in progress since 2016, it was not until the FY 2017 Byrne JAG

23 application that DOJ expressly applied this requirement (the “FY 2017 Section 1373 Requirement”) to

24 all jurisdictions.

25

48. Critically, since the Trump Administration has come into office, DOJ has declared that

26 it interprets Section 1373 much more broadly than local jurisdictions like San Francisco could have

27 previously imagined—specifically, that it reads “information regarding the citizenship or immigration

28 status” to include all information that would assist federal immigration authorities to determine a

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1 person’s immigration status and take that individual into custody, if appropriate.11 (The FY 2017

2 Section 1373 Requirement, FY 2017 Notice Requirement, and FY 2017 Access Requirements are

3 referred to collectively as the “FY 2017 Requirements.”)

4

49. DOJ claimed that two different general statutory provisions gave the Attorney General

5 the authority to impose these FY 2017 Requirements on Byrne JAG recipients. DOJ claimed that 34

6 U.S.C. § 10153(a)(5)(D), which requires Byrne JAG grant recipients to certify that they “will comply

7 with all provisions of this part and all other applicable Federal laws” (see ¶ 23, supra), allowed the

8 Attorney General to require that grant recipients comply with Section 1373. Defs.’ Mot. for Summ. J.

9 at 17-18, San Francisco v. Sessions, Dkt. No. 113.

10

50. DOJ took a different approach with respect to the FY 2017 Notice and Access

11 Requirements. DOJ did not argue that either Requirement stemmed from an existing statutory

12 obligation, and thus did not assert that Section 10153(a)(5)(D)’s “all applicable laws” language

13 allowed the Attorney General to impose them. Instead, DOJ relied on a different statutory provision,

14 34 U.S.C. § 10102(a)(6)—which allows the Assistant Attorney General overseeing OJP to “exercise

15 such other powers and functions as may be vested in [him or her] pursuant to this chapter or by

16 delegation of the Attorney General, including placing special conditions on all grants, and determining

17 priority purposes for formula grants.” See Defs.’ Mot. for Summ. J. at 9-14 San Francisco v. Sessions,

18 Dkt. No. 113. DOJ asserted that the FY 2017 Notice and Access Requirements were special

19 conditions covered by this provision.

20

51. The new FY 2017 Requirements elicited a wave of legal challenges, and several courts

21 have already struck them down—indeed to date all the federal courts that have considered those

22 requirements have found them unlawful. See City of Chicago v. Sessions, 888 F.3d 272, 276 (7th Cir.

23 2018) (invalidating FY 2017 Notice and Access Requirements); see also City of Philadelphia v.

24 Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018) (striking down all three FY 2017 Requirements);

25

26

27

11 Defs.’ Mot. for Summ. J. at 26, San Francisco v. Sessions, Dkt. No. 113 (asserting that

Section 1373 “reach[es] the types of information critical in applying the ‘immigration laws,’ including

28 the ‘removal of aliens.’”)

Complaint; CCSF v. Sessions Case No. 18-5146

12

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1 City of Chicago v. Sessions, No. 17-C 5720, 2018 WL 3608564, *12 (N.D. Ill. July 27, 2018) (striking

2 down all three FY 2017 Requirements).

3

52. Various other lawsuits challenging the FY 2017 Requirements remain pending12 —

4 including San Francisco’s lawsuit currently pending in this district.13

5 III. The Attorney General Imposes New Requirements On FY 2018 Byrne JAG Recipients.

6

53. Now that its previous efforts to withhold federal grant funds have been held unlawful

7 by courts around the country, President Trump’s Administration is trying another approach to turn the

8 Byrne JAG program into a weapon against sanctuary jurisdictions.

9

54. On July 20, 2018, DOJ announced that it would impose a number of immigration-

10 related conditions on jurisdictions seeking 2018 Byrne JAG funding.14

11

55. Some of these new requirements are little more than a dressed up version of the

12 Administration’s earlier efforts: The 2018 Local Solicitation includes a Section 1373 Requirement that

13 12 State of California v. Sessions, No. 17-CV-4701 (N.D. Cal. filed Aug. 14, 2017); City of
14 Evanston v. Sessions, No. 18-cv-4853 (N.D. Ill. filed July 16, 2018), City of Los Angeles v. Sessions, No.2:17-cv-07215-R-JCx (C.D. Cal. filed Sept. 29, 2018); City of New York v. Sessions, No. 18-cv-
15 06474 (S.D.N.Y. filed July 18, 2018); State of Illinois v. Sessions, No. 1:18-cv-04791 (N.D. Ill. filed July 12, 2018): State of New York v. U.S. Dep’t of Justice, No. 1:18-cv-06471 (S.D.N.Y. filed July 18,
16 2018).

17

13 San Francisco v. Sessions, No. 3:17-cv-04642 (N.D. Cal filed Aug. 11, 2017). San Francisco’s First Amended Complaint in that lawsuit challenges DOJ’s authority to impose the three

18

FY 2017 Requirements. The district court has already denied DOJ’s efforts to dismiss the case. Order Den. Mot. to Dismiss, San Francisco v. Sessions, Dkt. No. 78. Cross-motions for summary judgment

19

are currently pending in that case, and are presently scheduled to be heard on September 5, 2018. In its Motion for Summary Judgment, San Francisco seeks a declaratory judgment that the three FY 2017

20

Requirements are unlawful, as well as a permanent injunction prohibiting DOJ from imposing those Requirements on any current or future Byrne JAG awards. City and Cty. of S.F.’s Notice of Mot. and

21 Mot. for Summ. J., San Francisco v. Sessions, Dkt. No. 99. 14 DOJ has also announced that it will impose similar grant requirements on a number of other

22 public safety grants, including (1) Supporting Innovation: Field-Initiated Programs to Improve Officer

and Public Safety; (2) Justice Accountability Initiative: Pilot Projects Using Data-driven Systems to

23 Reduce Crime; (3) Gang Suppression Planning: Build Capacity for a Multilateral Data-Driven

Strategy to Promote Public Safety; and (4) A Law Enforcement and Prosecutorial Approach To

24 Address Gang Recruitment of Unaccompanied Alien Children program. Press Release, U.S. Dep’t of

Justice, Department of Justice Announces New Immigration Compliance Requirements for FY 2018

25 Grants (June 28, 2018) https://www.justice.gov/opa/pr/department-justice-announces-new-

immigration-compliance-requirements-fy-2018-grants In addition to imposing these requirements,

26 DOJ has also stated that it will “allow for preferential consideration of a grant application where the

applicant plans to use immigration-cooperation tactics to address public safety in their jurisdiction.”

27 Id. In the course of announcing those new requirements, the Attorney General stated that they are

designed to “encourage these ‘sanctuary’ jurisdictions to change their policies that undermine public

28 safety.” Id.

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1 is virtually indistinguishable from the FY 2017 version—even though that Certification has now been

2 held invalid by multiple courts. See ¶ 51, supra. And it includes repackaged efforts to require

3 jurisdictions to provide notice of an inmate’s release and access to correctional facilities when

4 immigration officials request it—requirements that DOJ now attempts to tie to a statutory obligation,

5 despite its inability to do so over the previous year of litigation regarding the FY 2017 Notice and

6 Access Requirements.

7

56. But other new FY 2018 Requirements go much further. DOJ has added several new

8 requirements that imply that sanctuary jurisdictions interfere with various federal laws and

9 regulations—even though those laws and regulations impose no obligations whatsoever on states and

10 local jurisdictions. And they further suggest that sanctuary jurisdictions may violate federal criminal

11 laws simply by having laws that limit entanglement with federal immigration policies. This is a

12 considerable escalation in the level of the threat the Trump Administration has sought to achieve.

13

57. Each of these FY 2018 Requirements is unlawful because DOJ lacks the statutory

14 authority to impose it. And even if DOJ had that authority, constitutional limits would still prevent it

15 from requiring compliance with these particular conditions.

16

A. The FY 2018 Section 1373 Requirement.

17

58. Although multiple courts have found the FY 2017 Section 1373 Requirement invalid,

18 DOJ is attempting to impose a virtually identical requirement on 2018 Byrne JAG funds.15 See FY

19 2018 Local Solicitation at 36 (attached as Exh. 2).

20

59. As it did for FY 2017, DOJ is requiring San Francisco to certify that, as to the “program

21 or activity” funded with Byrne JAG dollars, San Francisco does not have in effect, purport to have in

22 effect, or is subject to or bound by “any prohibition or any restriction . . . that deals with either (1) a

23 government entity or –official sending or receiving information regarding citizenship or immigration

24 15 The FY 2018 Section 1373 Requirement differs from the FY 2017 version in only two ways.
25 First, the FY 2018 Section 1373 Requirement also requires that Byrne JAG recipients certify that they do not violate 8 U.S.C. § 1644 (“Section 1644”), which imposes identical obligations to those that
26 Section 1373 itself mandates. FY 2018 Local Solicitation at 36 (attached as Exh. 2); see also id. at 42 (attached as Exh. 2). Second, the FY 2018 Section 1373 Requirement demands that jurisdictions
27 seeking to accept a FY 2018 Byrne JAG award provide OJP with “[i]nformation regarding Communications with the Department of Homeland Security (DHS) and/or Immigration and Customs
28 Enforcement (ICE).” FY 2018 Local Solicitation at 27 (attached as Exh. 2).

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1 status as described in 8 U.S.C. §§ 1373(a) and 1644; or (2) a government entity or agency sending to,

2 requesting or receiving from, maintaining, or exchanging information of the types (and with respect to

3 the entities) described in 8 U.S.C. § 1373(b).” FY 2018 Local Solicitation at 43 (attached as Exh. 2);

4 see also FY 2017 Local Solicitation at 38 (attached as Exh. 1).

5

60. Although a FY 2018 Byrne JAG applicant is not required to execute the Section 1373

6 Certification to apply for a FY 2018 Byrne JAG award, OJP has stated that an applicants will be

7 unable to accept an award until the certification is completed and received by OJP. FY 2018 Local

8 Solicitation at 27 (emphasis added) (attached as Exh. 2).

9

61. San Francisco has already challenged the legality of the FY 2017 Section 1373

10 Requirement in San Francisco v. Sessions. Id., First Am. Compl. at ¶¶ 78-93, 177-192, Dkt. No. 61.

11 San Francisco has sought relief that would enjoin Defendants from imposing the requirement on “any

12 Byrne JAG awards” and would declare the requirement unconstitutional. Id. at 41-42 (emphasis

13 added). San Francisco’s pending motion for summary judgment seeks a permanent nationwide

14 injunction on this issue. City and Cty. of S.F.’s Notice of Mot. and Mot. for Summ. J. at 1, San

15 Francisco v. Sessions, Dkt. No. 99.

16

62. Because the legality of DOJ’s attempts to require jurisdictions to certify compliance

17 with Section 1373 is already the subject of pending litigation between the parties, San Francisco is not

18 now bringing a separate challenge to the FY 2018 Section 1373 Requirement in this case. But San

19 Francisco reserves its right to seek to amend this Complaint later to add a challenge to the FY 2018

20 Section 1373 Requirement as appropriate. The focus of this case is on the other immigration-related

21 conditions.

22

B. The Section 1226 (Notice) Requirement.

23

63. OJP has also stated that it will require Byrne JAG recipients to make certifications

24 related to a host of other federal laws contained in the Immigration and Nationality Act. Specifically,

25 Byrne JAG applicants’ Chief Legal Officer will have to execute a document called “Local

26 Government: FY 2018 Certification Relating to 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a),

27 1357(a) & 1366(1) & (3)” (hereafter, “Immigration-Related Certification”). A copy of the

28
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1 Immigration-Related Certification can be found at page 45 of the FY 2018 Local Solicitation. For

2 ease of reference, it is also attached independently as Exhibit 3 to this Complaint.

3

64. A FY 2018 Byrne JAG applicant is not required to submit the Immigration-Related

4 Certification in order to apply for a FY 2018 Byrne JAG award. But an “applicant will be unable to

5 make a valid award acceptance” until the certification is completed and “received by OJP on or before

6 the day the unit of local government submits an executed award document.” FY 2018 Local

7 Solicitation at 27 (emphasis omitted) (attached as Exh. 2).

8

65. Among other things, the Immigration-Related Certification requires the Chief Legal

9 Officer—in San Francisco’s case, City Attorney Dennis J. Herrera—to certify that San Francisco has

10 no policies or practices that would or do impede federal officers’ exercise of authority relating to 8

11 U.S.C. Section 1226. Specifically, City Attorney Herrera has to certify:

12

a. that he has conducted a “careful[] review[]” of Section 1226;

13

b. that he has conducted (or caused to be conducted) a diligent inquiry and review

14 of “the ‘program or activity’ to be funded (in whole or in part) with the federal financial assistance

15 sought by the applicant entity under this FY 2018 OJP Program” as well as “any laws, rules, policies,

16 or practices . . . that implicate any of the requirements related to” Section 1226; and

17

c.

that, as to the “program or activity” funded with Byrne JAG dollars, San

18 Francisco does not have in effect or purport to have in effect, and is not subject to or bound by, “any

19 law, rule, policy, or practice . . . that would or does . . . impede the exercise by federal officers of

20 authority relating to 8 U.S.C. § 1226(a) & (c).” (Together, these are referred to in this Complaint as

21 “Section 1226 Requirement.”)

22

66. The Section 1226 Requirement appears to be nothing more than a repackaged version

23 of the FY 2017 Notice Requirement, which DOJ now for the first time attempts to connect to a

24 statutory provision.

25

67. Section 1226 authorizes arresting and detaining certain undocumented immigrants, and

26 provides that the federal government “shall take into custody” certain criminal aliens “when the alien

27 is released, without regard to whether the alien is released on parole, supervised release, or probation .

28 . . .” 8 U.S.C. § 1226(a) & (c)(1); see also FY 2018 Local Solicitation at 47 (attached as Exh. 2).

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1

68. Section 1226’s terms apply solely to the federal government—indeed, solely to the

2 Attorney General himself. It does not impose any obligations whatsoever on local governments.

3

69. Nonetheless, OJP is attempting to use it as a hook to require state and local jurisdictions

4 to provide notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s

5 custody.

6

70. In the body of the FY 2018 Local Solicitation, OJP has given one example of conduct

7 that it believes “impedes” federal officials’ exercise of their duties under Section 1226. OJP states that

8 grant recipients will be required to not “impede” the exercise of the authority of the federal

9 government under Section 1226 “specifically by requiring such recipients to provide (where feasible)

10 at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in

11 the recipient’s custody when DHS requests such notice in order to take custody of the alien pursuant to

12 the Immigration and Nationality Act.” FY 2018 Local Solicitation at 36-37 (emphasis added)

13 (attached as Exh. 2).

14

71. DOJ lacks the authority to impose the Section 1226 Requirement on Byrne JAG

15 recipients. Nothing in the Byrne JAG statute—or any other federal law—gives the Attorney General

16 the authority to impose this condition.

17

72. Furthermore, the Section 1226 Requirement is ambiguous as to what jurisdictions must

18 do to be in compliance. Although OJP offers one example of what it might mean to “impede” federal

19 officials in performing their duties under Section 1226, San Francisco has no way to know whether

20 OJP might consider other practices to so “impede” the federal government. This is particularly true

21 given that OJP’s example of what jurisdictions must do to avoid impeding the Attorney General’s

22 performance of his Section 1226 duties is far afield from anything that provision itself requires.

23

73. Indeed, even the example OJP gives is itself ambiguous. For example, DOJ’s request

24 for 48 hours’ advance notice does not explain whether notice must be given only when the scheduled

25 release date and time is known at least 48 hours in advance, or whether it requires jurisdictions to hold

26 inmates in custody for additional time to provide a full 48-hour period of notice to ICE. Actual release

27 dates and time often deviate from scheduled release dates and times.

28
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1

74. Also, the Section 1226 Requirement is not germane to the purposes of the Byrne JAG

2 program. Section 1226 is a federal civil immigration requirement that has nothing to do with local

3 criminal justice, or with any of the other purposes of the Byrne JAG program.

4

C. The Section 1231 (Notice) Requirement.

5

75. The Immigration-Related Certification appears to require local jurisdictions to make a

6 certification related to 8 U.S.C. §1231(a)(4) (“Section 1231 Requirement”).

7

76. In the header to the Immigration-Related Certification, OJP states that it is a

8 “Certification Relating to 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a) & 1366(1) & (3).”

9 Exh. 3.

10

77. Furthermore, the Chief Legal Officer must certify that she or he has “carefully

11 reviewed” Section 1231(a)(4) (id.), which provides that the federal government—specifically, the

12 Attorney General—“may not remove an alien who is sentenced to imprisonment until the alien is

13 released from imprisonment” (8 U.S.C. § 1231(a)(4)(A)).

14

78. And in the body of the FY 2018 Local Solicitation, OJP refers to Section 1231 and

15 states that grant recipients will be required to agree “[n]ot to impede the exercise of the authority of

16 the federal government under . . . [Section 1226 and] 8 U.S.C. § 1231(a)(4) (relating to removal from

17 the United States of aliens after detention/confinement at the federal, state, and local level),

18 specifically by requiring such recipients to provide (where feasible) at least 48 hours’ advance notice

19 to DHS regarding the scheduled release date and time of an alien in the recipient’s custody when DHS

20 requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality

21 Act.” FY 2018 Local Solicitation at 36-37 (attached as Exh. 2).

22

79. But the Immigration-Related Certification contains no other substantive references to

23 Section 1231. The Immigration-Related Certification—as it appears in the Local Solicitation—does

24 not require the Chief Legal Officer to certify that he or she has reviewed “any laws, rules, policies, or

25 practices potentially applicable to the ‘program or activity’ sought to be funded under the FY 2018

26 OJP Program” that “implicate” Section 1231. Exh. 3 (¶ 5). Nor does the Certification require the

27 Chief Legal Officer to certify that, as to the “program or activity” funded with Byrne JAG dollars, San

28
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1 Francisco does not have in effect any law, policy, or practice that “would or does . . . impede the

2 exercise by federal officers of . . . authority” relating to Section 1231. Id. (¶ 6).

3

80. Like the Section 1226 Requirement discussed above (see ¶¶ 63-76, supra), the Section

4 1231 Requirement appears to be nothing more than a repackaged version of the FY 2017 Notice

5 Requirement. And it fails for the same reasons. Id.

6

D. The Section 1357 (Access) Requirement.

7

81. The Immigration-Related Certification also requires Byrne JAG recipients to make

8 assurances “relating to” 8 U.S.C. § 1357(a). It requires the Chief Legal Officer to certify that San

9 Francisco has no policies or practices that would or do impede federal officers’ exercise of authority

10 relating to Section 1357. Specifically, the City Attorney Herrera will have to certify:

11

a. that he has conducted a “careful[] review[]” of Section 1357;

12

b. that he has conducted (or caused to be conducted) a diligent inquiry and review

13 of “the ‘program or activity’ to be funded (in whole or in part) with the federal financial assistance

14 sought by the applicant entity under this FY 2018 OJP Program” as well as “any laws, rules, policies,

15 or practices . . . that implicate any of the requirements related to” Section 1357; and

16

c. that, as to the “program or activity” funded with Byrne JAG dollars, San

17 Francisco does not have in effect or purport to have in effect, and is not subject to or bound by, “any

18 law, rule, policy, or practice . . . that would or does . . . impede the exercise by federal officers of

19 authority under 8 U.S.C. § 1357(a).” (Together, these are referred to in this Complaint as the “Section

20 1357 Requirement.”)

21

82. The Section 1357 Requirement appears to be nothing more than a repackaged version

22 of the FY 2018 Access Requirement, which DOJ now—for the first time—attempts to connect directly

23 to a statutory provision rather than to the general authority for “special conditions.”

24

83. Section 1357 provides, inter alia, that “[a]ny officer or employee of the [federal]

25 Service . . . shall have power without warrant to interrogate any alien or person believed to be an alien

26 as to his right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1); see also FY 2018 Local

27 Solicitation at 50-51 (attached as Exh. 2). DOJ appears to read this section in conjunction with 8

28 C.F.R. § 287.5(a)(1)—which states that an immigration officer can exercise this interrogation power

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1 “anywhere in or outside the United States”—to mean that immigration officials have a right to

2 interrogate anyone believed to be an alien any place and any time, without obtaining any form of

3 warrant. See FY 2018 Local Solicitation at 37 (attached as Exh. 2).

4

84. Section 1357 does not impose any obligations at all on local governments. Section

5 1357’s terms apply solely to the federal government—specifically to federal immigration officers and

6 federal immigration employees.

7

85. Nonetheless, OJP attempts to use it as a hook to require state and local jurisdictions to

8 permit personnel of the Department of Homeland Security to access any correctional or detention

9 facility to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right

10 to be or remain in the United States. As set forth in the body of the FY 2018 Local Solicitation, OJP

11 takes the position that restricting immigration officials’ access to suspected aliens in correctional

12 facilities “impedes” federal officials’ exercise of their duties under Section 1357. See FY 2018 Local

13 Solicitation at 37 (attached as Exh. 2).

14

86. DOJ lacks the authority to impose the Section 1357 Requirement on Byrne JAG

15 recipients. Nothing in the Byrne JAG statute—or any other federal law—gives the Attorney General

16 the authority to impose this condition.

17

87. And again, the Section 1357 Requirement is ambiguous as to what jurisdictions must

18 do to be in compliance. Although OJP offers one example of what it might mean to “impede” federal

19 officials in performing their Section 1357 duties, San Francisco has no way to know whether OJP

20 might consider other practices to similarly “impede” the federal government. This is particularly true

21 given that OJP’s example of what jurisdictions must do to avoid impeding federal immigration

22 officers’ performance of their Section 1357 duties is far afield from anything that a plain reading of the

23 provision would require.

24

88. Indeed, even the example OJP gives is itself ambiguous. For instance, is San Francisco

25 required to provide access to inmates in custody only when those inmates consent? Or must the City

26 compel unwilling inmates to meet with ICE representatives? Does San Francisco have to allow ICE

27 agents to use a jail interview room to “access” an uncooperative inmate when ICE wishes and for as

28 long as its agents wish? The Section 1357 Requirement does not answer these and similar questions.

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1

89. Also, the Section 1357 Requirement is not germane to the purposes of the Byrne JAG

2 program. Section 1357 is a federal civil immigration requirement that has nothing to do with local

3 criminal justice, or with any of the other purposes of the Byrne JAG program.

4

E. The Section 1324 Requirement.

5

90. The Immigration-Related Certification requires Byrne JAG recipients to make

6 assurances “relating to” 8 U.S.C. § 1324(a). Specifically, the Immigration-Related Certification

7 requires the Chief Legal Officer to certify that, as to the “program or activity” funded with Byrne JAG

8 dollars, San Francisco does not have in effect or purport to have in effect, and is not subject to or

9 bound by, “any law, rule, policy, or practice . . . that would or does . . . violate, or aid or abet any

10 violation of, 8 U.S.C. § 1324(a) (“Section 1324 Requirement”). Exh. 3.

11

91. Section 1324 forbids any “person,” in “knowing or in reckless disregard of the fact that

12 an alien has come to, entered, or remains in the United States in violation of law,” to “conceal[],

13 harbor[], or shield[] from detection or attempt[] to conceal, harbor, or shield from detection, such alien

14 in any such place, including any building or any means of transportation” or to “engage in any

15 conspiracy to commit any of the preceding acts . . . or aid[] or abet[] the commission of any of the

16 preceding acts.” 8 U.S.C. § 1324(a); see also FY 2018 Local Solicitation at 48-50 (attached as Exh.

17 2).

18

92. DOJ lacks the statutory authority to impose the Section 1324 Requirement on Byrne

19 JAG recipients. Nothing in the Byrne JAG statute—nor any other federal law—gives the Attorney

20 General the authority to impose this condition.

21

93. Furthermore, the Section 1324 Requirement is ambiguous as to what jurisdictions must

22 do to be in compliance. OJP offers no guidance about what laws, policies, or practices might be

23 deemed to violate, or aid and abet the violation of, Section 1324. Beyond citing the statutory

24 provision itself, OJP offers no guidance in the Local Solicitation about how local jurisdictions could

25 run afoul of the Section 1324 Requirement.

26

94. But elsewhere members of the Trump Administration have offered exceedingly broad

27 interpretations of Section 1324—interpretations that could embrace any local policy that limits local

28 enforcement of federal immigration laws.

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1

95. For instance, former ICE acting director Thomas Homan has stated on multiple

2 occasions that cities with sanctuary laws or policies are, or may be, violating Section 1324.

3

 In a July 27, 2017 interview regarding “sanctuaries,” Homan suggested that sanctuary

4

cities potentially violate Section 1324: “I think these sanctuary cities need to make sure

5

they’re on the right side of the law. They need to look at this. Because I am.”16

6

 In an August 2017 interview, Homan said: “And the third thing I talked to the attorney

7

general today about was, you know, we need to look at these jurisdictions, are they

8

crossing a legal line, are they committing a statutory crime by 8 U.S.C. 1324, alien

9

smuggling? There’s a part of the law that says that if you harbor, conceal or shield,

10

knowingly shield an illegal alien from law enforcement, that’s a crime. So I have asked

11

the attorney general. We need to look at this and find out, are these jurisdictions on the

12

right side of that law?”17

13

 And as recently as January 2018, Homan suggested that jurisdictions violate Section

14

1324 simply by having policies that deny federal immigration officials access to

15

inmates in jails. Homan stated “we’re going to enforce the law without apology. What

16

I’m also doing is working with the Department of Justice. For these sanctuary cities

17

that knowingly shield and harbor an illegal alien in their jail and don’t allow us access,

18

that is, in my opinion, a violation of 8 U.S.C. 1324. That’s an alien smuggling

19

statute.”18

20

96. Similarly, the Secretary of Homeland Security, Kirstjen Nielsen, has stated that her

21 department has requested that DOJ “look into” whether elected officials in sanctuary jurisdictions are

22 16 Stephen Dinan, ICE Chief wants to Slap Smuggling Charges on Leaders of Sanctuary Cities,

23 The Washington Times (July 26, 2017) https://www.washingtontimes.com/news/2017/jul/26/thomashoman-ice-chief-says-immigrant-sanctuaries-/.

24

17 Interview by Trish Regan with U.S. Acting Immigration and Customs Enforcement Director

25

Thomas Homan, Acting ICE chief: Sanctuary cities put politics above safety, Fox News (Aug. 16, 2017) http://www.foxnews.com/transcript/2017/08/16/acting-ice-chief-sanctuary-cities-put-politics-

26 above-safety.html. 18 Interview by Neil Cavuto with U.S. Acting ICE Director Thomas Homan, Acting ICE

27 director: California made a foolish decision, Fox News (Jan. 2, 2018), http://www.foxnews.com/transcript/2018/01/02/acting-ice-director-california-made-foolish-

28 decision.html.

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1 violating Section 1324 and “review[] what avenues might be available” as part of their efforts to 2 “find[] an efficient and effective way to enforce our immigration laws.”19

3

97. These comments suggest DOJ could embrace an expansive reading of Section 1324—a

4 reading that would view every jurisdiction with any sanctuary law or policy as potentially violating

5 Section 1324.20 This creates an ambiguity that makes it impossible for San Francisco—and other local

6 jurisdictions, particularly those with sanctuary policies—to understand what is required to comply

7 with the Section 1324 Requirement.

8

98. As a result of this ambiguity, San Francisco and other local jurisdictions are left with no

9 specific guidance on how to comply with the Section 1324 Requirement, and a generalized threat that

10 their sanctuary laws and policies put them at risk not only for a loss of Byrne JAG funds, but also for

11 criminal penalties.

12

99. Also, the Section 1324 Requirement is not germane to the purposes of the Byrne JAG

13 program. Section 1324 is a portion of the federal immigration code that has nothing to do with local

14 criminal justice, or any of the other purposes of the Byrne JAG program.

15

F. The Section 1366 Requirement.

16

100. Finally, the Immigration-Related Certification requires local jurisdictions to make

17 assurances “relating to” 8 U.S.C. § 1366(1) & (3). Specifically, the Immigration-Related Certification

18 requires the Chief Legal Officer to certify that, as to the “program or activity” funded with Byrne JAG

19 dollars, San Francisco does not have in effect or purport to have in effect, and is not subject to or

20 bound by, “any law, rule, policy, or practice . . . that would or does . . . impede the exercise by federal

21 officers of authority relating to 8 U.S.C. § 1366(1) & (3)” (“Section 1366 Requirement”). See Exh. 3.

22

19 Oversight of the United Stated Department of Homeland Security: Before the S. Comm. on

23

the Judiciary, 115th Cong. (Jan. 16, 2018), https://www.judiciary.senate.gov/meetings/oversight-ofthe-united-states-department-of-homeland-security, at 4:02:51.

24

20 San Francisco does not “harbor” criminals and its sanctuary city laws do not prevent federal

authorities from taking custody of individuals with outstanding criminal warrants. San Francisco law

25 prohibits San Francisco law enforcement officials from detaining an individual who is otherwise

eligible for release from custody on the basis of a civil immigration detainer request issued by the

26 federal government. A detainer request is distinct from a criminal warrant, which San Francisco

honors consistent with its Sanctuary City Laws. A detainer request is not issued by a judge based on a

27 finding of probable cause. It is simply a request by ICE that a state or local law enforcement agency

hold individuals after their release date to provide ICE agents extra time to decide whether to take

28 those individuals into federal custody and then deport them.

Complaint; CCSF v. Sessions Case No. 18-5146

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1

101. Section 1366 requires the Attorney General to submit an annual report to the House and

2 Senate Judiciary Committees detailing (1) “the number of illegal aliens incarcerated in Federal and

3 State prisons for having committed felonies,” and (2) the “programs and plans underway in the

4 Department of Justice to ensure the prompt removal from the United States of criminal aliens subject

5 to removal.” 8 U.S.C. § 1366(1) & (3); see also FY 2018 Local Solicitation at 51 (attached as Exh. 2).

6

102. Again, Section 1366 does not impose any obligations on local governments themselves.

7 Section 1366’s terms apply solely to the federal government—specifically to the Attorney General

8 himself. It imposes a reporting requirement that only the Attorney General can perform.

9

103. And OJP has given local jurisdictions no guidance about what it means to “impede”

10 federal officials’ exercise of authority relating to Section 1366. While the body of the FY 2018 Local

11 Solicitation discusses each other statutory provision (see FY 2018 Local Solicitation at 36-37 (attached

12 as Exh. 2)), the FY 2018 Local Solicitation contains no other references to Section 1366 beyond those

13 set forth in the Immigration-Related Certification.

14

104. DOJ lacks the statutory authority to impose the Section 1366 Requirement on Byrne

15 JAG recipients. Nothing in the Byrne JAG statute—nor any other federal law—gives the Attorney

16 General the authority to impose conditions of his choice.

17

105. Furthermore, the Section 1366 Requirement is ambiguous as to what jurisdictions must

18 do to be in compliance. Again, OJP has given local jurisdictions no guidance about what types of

19 local laws, policies, or practices impede the Attorney General in the exercise of his Section 1366

20 responsibilities. Accordingly, local jurisdictions can only speculate about what local laws, policies, or

21 practices the federal government may decide interfere with federal officers’ conduct “relating to” their

22 obligations under Section 1366. And this speculation is made all the more difficult by the fact that

23 Section 1366’s text provides no role for local governments to play in the Attorney General’s reporting

24 obligations.

25

106. Also, the Section 1366 Requirement is not germane to the purposes of the Byrne JAG

26 program. Section 1366 is a federal immigration reporting requirement that has nothing to do with

27 local criminal justice, or any of the other purposes of the Byrne JAG program.

28
Complaint; CCSF v. Sessions Case No. 18-5146

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1

107. Collectively, the Complaint refers to the Requirements set forth in the Immigration-

2 Related Certification as the “Challenged FY 2018 Requirements.” See ¶¶ 63-106, supra.

3 IV. 4 5

San Francisco Faces Immediate Injury From The Challenged FY 2018 Byrne JAG Requirements.
A. San Francisco Cannot Certify Compliance With The Immigration-Related Requirements Without Changing Its Laws And Policies.

6

108. San Francisco is unable to execute the Immigration-Related Certification. San

7 Francisco’s existing laws and policies prevent it from certifying that it complies with several of the

8 new requirements that DOJ has imposed. And as to others, the ambiguity regarding the meaning and

9 scope of the requirements creates significant uncertainty for San Francisco—uncertainty that makes it

10 impossible for San Francisco to execute the Immigration-Related Certification.

11

109. The San Francisco Sheriff’s Department has policies regarding access to jails for ICE

12 officials enforcing the civil immigration laws. Specifically, the Sheriff’s Department policy prohibits

13 Sheriff’s Department employees from providing ICE agency representatives, or any other individual

14 conducting civil immigration enforcement, access to inmates in jail, access to SFSD computers, 15 databases and logs, release dates and times for inmates, and home or work contact information.21

16

110. These policies make it difficult, if not impossible, for San Francisco to comply with the

17 Section 1357 Requirement, which DOJ interprets to mandate that recipients permit DHS agents to

18 have unfettered access to inmates in jails. See ¶¶ 83-88, supra.

19

111. Similarly, San Francisco has laws regarding City employees’ authority to provide

20 advance notification of an individual in custody’s release date. Specifically, Chapter 12I of San

21 Francisco’s Administrative Code—part of San Francisco’s Sanctuary City laws—prohibits San

22 Francisco law enforcement officials from responding to a federal immigration officer’s request for

23 advance notification of the date and time an individual in San Francisco’s custody is being released,

24 unless the individual in custody meets certain criteria. See S.F. Admin. Code § 12I.3(c)-(d).

25

112. This law make it difficult, if not impossible, for San Francisco to comply with the

26 Section 1226 and Section 1231 Requirements, which DOJ interprets to require that recipients provide

27 21 ICE requests for assistance with criminal investigations are directed to the Sheriff, who
28 directs any assistance to ICE agents as she deems appropriate.

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1 at least 48 hours’ advance notice regarding the date and time an individual is scheduled to be released

2 from the San Francisco’s custody. See ¶¶ 69-73, 78, supra.

3

113. Also, ambiguity regarding the meaning and scope of the Section 1324 Requirement

4 makes it difficult for San Francisco to certify that it complies with the Section 1324 Requirement.

5

114. As described above (see ¶¶ 93-97, supra), the Trump Administration has interpreted

6 Section 1324 broadly to mean that jurisdictions potentially violate Section 1324 simply by having

7 sanctuary city laws or policies that limit cooperation with federal immigration authorities.

8

115. San Francisco has such laws and policies that limit cooperation with federal

9 immigration officials. San Francisco has been a Sanctuary City since 1989, when it first enacted

10 ordinances to protect Central American refugees who were escaping violent civil wars in their home

11 countries and seeking legal protections in the United States. In addition to the policies described

12 above, San Francisco’s current Sanctuary City Laws, codified in Chapters 12H and 12I of the San

13 Francisco Administrative Code, continue to reflect San Francisco’s broad dedication and commitment 14 to promote public safety, public health, and community integrity.22

15

116. In light of these laws and policies, the Trump Administration’s statements regarding

16 Section 1324 create a cloud of uncertainty for San Francisco. San Francisco cannot sign the

17 Immigration-Related Certification—particularly in light of the penalties that attach to that Certification

18 (see Exh. 3 (explaining that a “materially false, fictitious, or fraudulent statement” in the certification

19 will potentially subject the certifying Chief Legal Officer to criminal prosecution and the applicant

20 entity to civil penalties and administrative remedies for false claims)—under that cloud of uncertainty.

21

22

22 These laws serve important public purposes, as the legislative findings set forth in Chapter 12I confirm. The Board of Supervisors has declared:

23

Fostering a relationship of trust, respect, and open communication between City

employees and City residents is essential to the City’s core mission of ensuring

24

public health, safety, and welfare, and serving the needs of everyone in the

community, including immigrants. The purpose of this Chapter 12I, as well as

25

of Administrative Code Chapter 12H, is to foster respect and trust between law

enforcement and residents, to protect limited local resources, to encourage

26

cooperation between residents and City officials, including especially law

enforcement and public health officers and employees, and to ensure

27

community security, and due process for all.

28 See Section 12I.2.
Complaint; CCSF v. Sessions Case No. 18-5146

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1

117. Likewise, significant ambiguities prevent San Francisco from certifying that it complies

2 with the Section 1366 Requirement. DOJ has offered no guidance as to the meaning of that

3 Requirement. See ¶ 103, supra. As a result, San Francisco cannot certify that it complies with that

4 Requirement, as it has no way to know what the Requirement demands of it.

B. The Challenged FY 2018 Requirements Put San Francisco To An Unconstitutional

5

Choice.

6

118. The Challenged FY 2018 Requirements create an untenable choice for San Francisco,

7 when it is faced with the decision whether to accept the FY 2018 Byrne JAG award. San Francisco

8 must choose between amending its laws and policies to allow it to execute the Immigration-Related

9 Certification, or forgoing hundreds of thousands of dollars in important criminal justice funding.

10

119. As described above, San Francisco cannot sign the Immigration-Related Certification in

11 light of various ambiguities and potential conflicts with San Francisco’s laws and policies. If San

12 Francisco maintains those laws and policies and declines to execute the Immigration-Related

13 Certification, it will have to forgo direct FY 2018 Byrne JAG funding. This is because recipients are

14 required to certify that they comply with all applicable award conditions and execute all necessary 15 certifications in order to accept a FY 2018 Byrne JAG award.23

16

120. San Francisco will also have to forgo the pass-through grant it expects to receive from

17 the State of California.

18

121. On information and belief, the State of California has applied for FY 2018 Byrne JAG

19 funds, or will do so in the near future. Once the State of California receives Byrne JAG funds, it

20 issues a request for proposals (“RFP”) for local jurisdictions to apply for pass-through funds. San

21 Francisco has applied for, and received, pass-through Byrne JAG funds in the past pursuant to this

22 RFP process. But to receive pass-through Byrne JAG funds, San Francisco would be required to

23 submit assurances that it will comply with all award requirements.

24

122. The loss of this funding will have significant negative impacts on San Francisco. The

25 variety of programs that Byrne JAG funding supports will be placed in jeopardy. San Francisco could

26 23 When it submitted its application for FY 2018 Byrne JAG funding, San Francisco included a
27 reservation of rights regarding the Challenged FY 2018 Requirements. San Francisco made clear that it was not certifying that it would comply with the Challenged FY 2018 Requirements, and stated that
28 it was planning to challenge those requirements in litigation.

Complaint; CCSF v. Sessions Case No. 18-5146

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1 be forced to reduce or eliminate these programs, and the staff positions they support, unless additional

2 funding sources could be identified.

3

123. Alternatively, San Francisco could change its local laws and policies to attempt to

4 comply with the Challenged FY 2018 Requirements—a difficult endeavor given the significant

5 ambiguities about the scope and meaning of many of those Requirements.

6

124. More significantly, changing its local laws and policies would also harm San Francisco

7 by forcing it to abandon its considered and constitutionally protected policy judgments. San

8 Francisco’s Sanctuary City laws and policies reflect lawmakers’ considered judgment that public

9 safety, public health, and community cohesion are best served by limiting local employees’

10 entanglement with federal immigration priorities to the extent possible under federal law. By

11 threatening to withhold funds, DOJ seeks to intrude on San Francisco’s sovereign authority to make

12 such policy choices.

13

COUNT ONE: SEPARATION OF POWERS

14

125. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

15 if fully set forth herein.

16

126. In July 2018, Defendants issued a solicitation seeking applications for the FY 2018

17 Byrne JAG program.

18

127. San Francisco has applied for the FY 2018 Byrne JAG program.

19

128. The FY 2018 Local Solicitation makes clear that jurisdictions wishing to accept 2018

20 Byrne JAG funds will have to execute a “Certification Relating to 8 U.S.C. §§ 1226(a) & (c),

21 1231(a)(4), 1324(a), 1357(a), & 1366(1) & (3).” This Certification imposes the Challenged FY 2018

22 Requirements.

23 //

24 //

25

129. The Constitution vests Congress with legislative powers, see U.S. Const. art. 1, § 1, and

26 the spending power, see U.S. Const. art. 1, § 8, cl. 1. Absent a statutory provision or an express

27 delegation, only Congress is entitled to attach conditions to federal funds.

28
Complaint; CCSF v. Sessions Case No. 18-5146

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1

130. Congress has not enacted the Challenged FY 2018 Requirements as part of any

2 statutory scheme.

3

131. Congress has not enacted the Challenged FY 2018 Requirements as applicable to Byrne

4 JAG funds.

5

132. Congress has not delegated to Defendants the authority to impose the Challenged FY

6 2018 Requirements on Byrne JAG funds.

7

133. Defendants are unilaterally imposing the Challenged FY 2018 Requirements without

8 authorization from Congress.

9

134. For these reasons, DOJ in imposing the Challenged FY 2018 Requirements

10 unconstitutionally intrudes upon and usurps powers that belong to Congress, violating principles of

11 separation of powers.

12

COUNT TWO: SPENDING CLAUSE

13

135. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

14 if fully set forth herein.

15

136. As described above, the Challenged FY 2018 Requirements violate separation of

16 powers principles because they are not authorized by Congress, expressly or impliedly.

17

137. Even if Congress had delegated its authority to impose conditions on Byrne JAG funds,

18 the Challenged FY 2018 Requirements would violate the Spending Clause by:

19

a. imposing conditions that are ambiguous, see Pennhurst State Sch. & Hosp. v.

20 Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate under the

21 spending power . . . rests on whether the State voluntarily and knowingly accepts [Congress’

22 conditions]… There can, of course, be no knowing acceptance if a State is unaware of the conditions

23 or is unable to ascertain what is expected of it… [I]f Congress intends to impose a condition on the

24 grant of federal moneys, it must do so unambiguously.” ); and

25

b. imposing conditions that are not germane to the stated purposes of the Byrne

26 JAG funds, see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (“[C]onditions on federal grants

27 might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or

28 programs.’”).
Complaint; CCSF v. Sessions Case No. 18-5146

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1

PRAYER FOR RELIEF

2

Wherefore, San Francisco prays that the Court grant the following relief:

3

1. Declare the Challenged FY 2018 Requirements Defendants have imposed on the Byrne

4 JAG program unconstitutional;

5

2. Permanently enjoin Defendants from using the Challenged FY 2018 Requirements as

6 funding restrictions for any Byrne JAG awards, now or in the future;

7

3. Award San Francisco reasonable costs and attorneys’ fees; and

8

4. Grant any other further relief that the Court deems fit and proper.

9

10 Dated: August 22, 2018

11

DENNIS J. HERRERA

12

City Attorney JESSE C. SMITH

13

RONALD P. FLYNN YVONNE R. MERÉ

14

TARA M. STEELEY SARA J. EISENBERG

15

AILEEN M. McGRATH Deputy City Attorneys

16

17

By: /s/ Dennis J. Herrera

DENNIS J. HERRERA

18

City Attorney

19

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

20

21

22

23

24

25

26

27

28
Complaint; CCSF v. Sessions Case No. 18-5146

30

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 Case 3:18-cv-05146-WHO Document 22 Filed 11/01/18 Page 1 of 29

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 TARA M. STEELEY, State Bar #231775

SARA J. EISENBERG, State Bar #269303

6 AILEEN M. McGRATH, State Bar #280846 Deputy City Attorneys

7 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

8 San Francisco, California 94102-4602

Telephone: (415) 554-4748

9 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

10 Attorneys for Plaintiff

11 CITY AND COUNTY OF SAN FRANCISCO

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

CITY AND COUNTY OF SAN

Case No. 3:18-cv-05146-WHO

16 FRANCISCO,

FIRST AMENDED COMPLAINT FOR

17

Plaintiff,

DECLARATORY AND INJUNCTIVE RELIEF

18

vs.

19 JEFFERSON B. SESSIONS III, Attorney General of the United States, LAURA L.
20 ROGERS, Acting Assist. Attorney General of the United States, UNITED STATES
21 DEPARTMENT OF JUSTICE, DOES 1-100,

22

Defendants.

23

24

25

26

27

28
Amended Complaint; CCSF v. Sessions Case No. 3:18-cv-05146-WHO

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1

INTRODUCTION

2

1. During his campaign, President Trump pledged to end federal funding to sanctuary

3 cities. Despite the determination by these cities that their sanctuary laws and policies make their own

4 communities safer, healthier and stronger, his Administration has spent more than eighteen months

5 trying to coerce them to abandon those laws and policies by threatening to defund them. The Trump

6 Administration’s two attempts to do so have been rebuffed by the federal courts.

7

2. First, President Trump signed an executive order directing the Attorney General and

8 Secretary of Homeland Security to ensure that “sanctuary jurisdictions” did not receive federal

9 funds. This Court struck it down. Next, the Department of Justice (“DOJ”) attempted to impose

10 immigration-related requirements on FY 2017 Byrne JAG funds. Every single court that has

11 examined the validity of these requirements—including this Court—has found them to be

12 unconstitutional.

13

3. DOJ’s latest effort should fare no better. DOJ recently announced that it is again

14 attempting to coerce sanctuary jurisdictions into changing their laws and policies by imposing

15 unconstitutional requirements on important criminal justice grant funding. Some of the new

16 requirements DOJ has imposed on the FY 2018 Byrne JAG funds (e.g., those that require jurisdictions

17 to give immigration authorities both unfettered access to their jails and 48 hours’ notice before

18 releasing an individual believed to be in the country illegally) are nothing more than repackaged

19 versions of the FY 2017 requirements that courts across the country have struck down. But others go

20 much further. Indeed, the new requirements cast a threatening pall over sanctuary jurisdictions by

21 implying that they may be violating federal criminal laws simply by having laws or policies that limit

22 entanglement with federal immigration policies.

23

4. These extortive requirements are unlawful. As a threshold matter, DOJ lacks the

24 statutory authority to impose them. The Constitution establishes a balance of power between the state

25 and federal governments, as well as among the coordinate branches of the federal government, to

26 prevent the excessive accumulation of power in any single entity and reduce the risk of tyranny and

27 abuse from any government office. An executive branch agency of the federal government may not

28 seize for itself the power that the Constitution reserves for Congress. Nor may it intrude on authority

Amended Complaint; CCSF v. Sessions Case No. 3:18-cv-05146-WHO

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1 that the Constitution has preserved for state and local governments. The FY 2018 grant requirements

2 violate both of these precepts. DOJ is improperly attempting to wield powers that only Congress is

3 entitled to invoke, and is seeking to compel San Francisco to bend its considered policy judgments,

4 which the Constitution allows it to make for its community, to the federal government’s will.

5

5. And even if DOJ has the authority to impose some conditions on the FY 2018 Byrne

6 JAG funds, each of the challenged requirements at issue here relating to federal immigration

7 enforcement would still be unlawful under other constitutional limits. Those limits prevent DOJ from

8 requiring compliance with the funding requirements because (1) they leave localities unclear about

9 how to comply with each of the requirements, and (2) they lack a nexus between the congressionally

10 mandated purpose of Byrne JAG funds and immigration enforcement.

11

6. San Francisco faces the immediate prospect of losing over $1.4 million in this fiscal

12 year if it does not receive FY 2018 Byrne JAG funds. San Francisco uses these funds for a variety of

13 important law enforcement purposes, including programs designed to reduce recidivism, provide

14 alternative forms of prosecution, or enable drug treatment for underserved populations.

15

7. San Francisco faces an unacceptable choice that is precisely what the Trump

16 Administration wishes it to have: either comply with DOJ’s unconstitutional new grant conditions and

17 abandon local policies that San Francisco adopted to promote public safety and foster trust and

18 cooperation between law enforcement and the public; or, maintain these policies but forfeit critical

19 funds that it relies on to provide essential services to San Francisco residents.

20

8. San Francisco is not obligated to enforce federal immigration law. San Francisco seeks

21 declaratory and injunctive relief to ensure that San Francisco and other sanctuary jurisdictions

22 continue to be eligible for these funds, instead of being coerced into accepting conditions that on their

23 face violate bedrock constitutional principles of separation of powers, as well as constitutional

24 vagueness and germaneness restrictions on grant requirements.

25

JURISDICTION AND VENUE

26

9. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

27 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201(a) and 2202

28 et seq.
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1

10. Venue properly lies within the Northern District of California because Plaintiff,

2 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

3 rise to this action occurred in this District. 28 U.S.C. § 1391(e)(1).

4

INTRADISTRICT ASSIGNMENT

5

11. Assignment to the San Francisco or Oakland Division of this District is proper pursuant

6 to Civil Local Rule 3-2(c)-(d) because a substantial part of the acts or omissions that give rise to this

7 action occurred in the City and County of San Francisco.

8

PARTIES

9

12. Plaintiff San Francisco is a municipal corporation organized and existing under and by

10 virtue of the laws of the State of California, and is a charter city and county.

11

13. Defendant Jefferson B. Sessions III is the Attorney General of the United States. He is

12 sued in his official capacity. The Attorney General is the federal official leading the DOJ, which is

13 responsible for the governmental actions at issue in this lawsuit.

14

14. Defendant Laura L. Rogers is Acting Assistant Attorney General of the United States in

15 charge of the Office of Justice Programs, which administers Byrne JAG funding. She is sued in her

16 official capacity.

17

15. Defendant DOJ is an executive department of the United States of America that is

18 responsible for administering the Byrne JAG program.

19

16. Doe 1 through Doe 100 are sued under fictitious names. Plaintiff San Francisco does

20 not now know the true names or capacities of said Defendants, who were responsible for the alleged

21 violations, but pray that the same may be alleged in this complaint when ascertained.

22

FACTUAL ALLEGATIONS

23 I. The Byrne JAG Program Provides Important Criminal Justice Funds To San Francisco.

24

A. The Byrne JAG Program

25

17. The Byrne JAG program is “the leading source of federal justice funding to state and

26 local jurisdictions.” Office of Justice Programs, Welcome to BJA’s Edward Byrne Memorial Justice

27 Assistance Grant (JAG) Program, https://www.bja.gov/jag/ (last visited Nov. 1, 2018). The program

28 provides state and local governments with “critical funding necessary to support a range of program

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1 areas including law enforcement, prosecution, indigent defense, courts, crime prevention and

2 education, corrections and community corrections, drug treatment and enforcement, . . . crime victim

3 and witness initiatives and mental health programs.” Id.

4

18. The program is structured as a formula grant, awarding funds to all eligible grantees

5 according to a prescribed metric. Unlike discretionary grants, which agencies award under agency

6 discretion, “‘formula’ grants . . . are not awarded at the discretion of a state or federal agency, but are

7 awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088

8 (9th Cir. 1989). Specifically, the Bureau of Justice Assistance (“BJA”)—a department within the

9 Office of Justice Programs (“OJP”)—awards Byrne JAG funds to all eligible grantees in amounts

10 based on Bureau of Justice Statistics (“BJS”) calculations derived from the Byrne JAG statutory

11 formula. See 34 U.S.C. § 10156(d)(2)(A) (providing that the Attorney General “shall allocate to each

12 unit of local government” funds consistent with the established formula) (emphasis added).

13

19. The formula for state allocations is a function of population and violent crime. See id.

14 § 10156(a). For local governments, the allocation is based on the state’s allocation and the ratio of

15 violent crime in the locality to violent crime in the state. See id. § 10156(d). For example, in FY

16 2018, California’s total allocation is $28.9 million. Of this, $17.4 million (60 percent) is allocated to

17 the State (see id. § 10156(b)-(d))—but a minimum of 62.9 percent of these funds must be passed 18 through to local jurisdictions.1 The other $11.6 million (40 percent) is allocated for direct grants to

19 local jurisdictions. See id. § 10156(b)-(d).

20

20. Congress imposed only a limited number of requirements on Byrne JAG applicants.

21

21. First, Congress has required applicants to supply information about their intended use

22 of grant funding, to demonstrate that they will spend the money on programs supporting one of the

23 eight statutory purpose areas. See 34 U.S.C. § 10153(a)(2) & (a)(5)(A)-(C). Those purpose areas are:

24 (1) law enforcement, (2) prosecution and courts, (3) prevention and education, (4) corrections and

25

26

1 U.S. Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant (JAG) Program

Frequently Asked Questions (FAQs)–Updated August 2017, at 2,

27 https://www.bja.gov/Funding/JAGFAQ.pdf; see also U.S. Dep’t of Justice, FY 2014 Justice Assistance

Grant (JAG) Program Variable Pass-through (VPT) Percentages,

28 https://www.bja.gov/Funding/JAGvpt.pdf.

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1 community corrections, (5) drug treatment, (6) planning, evaluation, and technology improvement, (7)

2 crime victim and witness programs, and (8) mental health programs, including behavioral programs

3 and crisis intervention. 34 U.S.C. § 10152(a)(1)(A)-(H). None of these program purposes include

4 federal immigration enforcement.

5

22. Second, Congress requires applicants to maintain and be prepared to report information

6 demonstrating that they possess programmatic and financial integrity. Id. § 10153(a)(4).

7

23. Finally, Congress requires applicants to “certif[y]” that they “will comply with all

8 provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D).

9

24. Not one of these requirements relates to immigration. Indeed, over a decade ago,

10 Congress removed the only requirement in the Byrne JAG statute that touched on immigration-related

11 issues. In 2006, Congress specifically eliminated a funding requirement that recipients make “[a]n

12 assurance that the State has established a plan under which the State will provide without fee to the

13 Immigration and Naturalization Service, within 30 days of the date of their conviction, notice of

14 conviction of aliens who have been convicted of violating the criminal laws of the State and under

15 which the State will provide the Service with the certified record of such a conviction within 30 days

16 of the date of a request by the Service for such record.” 42 U.S.C. § 3753(a)(11) (2002).

17

25. Given the limited discretion Congress has bestowed upon DOJ under the Byrne JAG

18 statute for these formula grants, the Attorney General has no authority to withhold or reduce federal

19 grant funding that a state or local government is entitled to receive. DOJ officials acknowledged as

20 much in the recent past, when then-Assistant Attorney General Peter Kadzik wrote a letter to Senator

21 Richard Shelby regarding the Senator’s request that DOJ tie federal grant funding to federal

22 immigration priorities. Kadzik stated that DOJ could not do so because “many Department grant

23 funds are formula based” such that “the Department does not have the discretion to suspend funding at 24 all.”2

25

26

27 2 Defs’ Administrative Record, City and County of San Francisco v. Sessions, No. 3:17-cv-
28 4642-WHO (“San Francisco v. Sessions”) (N.D. Cal. Mar. 23, 2018), ECF No. 84-2 at AR00113.

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1

B. San Francisco Uses Byrne JAG Funding To Support Important City Programs.

2

26. The San Francisco Department of Children, Youth and Their Families (“DCYF”)

3 applies for local Byrne JAG funds and state pass-through funds on behalf of the City. DCYF keeps a

4 portion of the grant and also administers grant funds to the following departments: the Adult Probation

5 Department, District Attorney, Public Defender, Police Department, and Sheriff. DCYF also passes

6 through funds from the local grant to the San Francisco Superior Court and a third-party evaluator.

7

27. Before FY 2017, San Francisco received state and local Byrne JAG funds every year

8 for well over a decade.

9

28. San Francisco submitted its FY 2017 Byrne JAG application on September 5, 2017, but

10 OJP has not yet taken action on it.3

11

29. San Francisco submitted its FY 2018 Byrne JAG application on August 21, 2018, but

12 OJP has not yet taken action on it.4

13

30. For FY 2018, San Francisco is entitled to a direct Byrne JAG formula grant of

14 $489,966. San Francisco also expects to receive a state pass-through of Byrne JAG funds in the

15 amount of $941,915.

16

31. Consistent with the Byrne JAG statute, San Francisco uses its Byrne JAG funds to

17 support critical law enforcement programs designed to reduce criminal behavior and improve public

18 safety. Specific programs funded with this grant include: (1) Law Enforcement Assisted Diversion, an

19 innovative approach that seeks to accomplish the goals of reduced criminal behavior and improved

20 public safety by connecting appropriate low-level drug offenders with services; (2) Focused Drug

21 Deterrence, short and long term proactive activities including targeted investigations and enforcement

22 and social network analysis to increase the identification of individuals involved in high-level drug

23 markets; (3) Drug Court Prosecution, which seeks to connect criminal defendants who suffer from a

24

3 DOJ has, on information and belief, awarded FY 2017 Byrne JAG grants to hundreds of other

25

jurisdictions—“jurisdictions that share the Department’s commitment to keeping criminal aliens off our streets and our law abiding citizens safe.” Press Release, U.S. Dep’t of Justice, DOJ Releases

26

FY17 JAG Funding (June 27, 2018), https://content.govdelivery.com/accounts/USDOJOJP/bulletins/ 1fa6e57. Now that this Court has declared the FY 2107 grant conditions unconstitutional, DOJ has

27 represented that San Francisco will receive its award soon. 4 DOJ has, on information and belief, awarded FY 2018 Byrne JAG grants to hundreds of other

28 jurisdictions. See ¶ 56, infra.

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1 substantial substance abuse problem to treatment services in the community in order to enhance public

2 safety, reduce recidivism, and find appropriate dispositions to the criminal charges; (4) Targeted Drug

3 Treatment for Underserved Populations, a treatment intervention conducted by the Sheriff’s

4 Department for individuals in custody; (5) Intensive Probation Supervision, a targeted caseload of

5 probationers with substance abuse and/or mental health issues; (6) Reentry Social Work through the

6 Public Defender’s Office, which provides legal and wraparound support to help indigent clients

7 charged with felony drug cases and other felony offenses successfully exit the criminal justice system;

8 and (7) Citywide Justice-Involved Youth Planning, which examines current criminal justice trends

9 impacting youth and young adults and strengthens partnerships and collaboration at various levels to

10 create a continuum of support for youth and young adults.

11

32. San Francisco uses Byrne JAG pass-through funds to support a Young Adult Court

12 aimed at reducing recidivism for youth ages 18-25. This Court was designed in response to a growing

13 body of neuroscience research showing that young adults are fundamentally different from both

14 juveniles and older adults in how they process information and make decisions. Our traditional justice

15 system is not well-equipped to address cases involving these individuals, who are qualitatively

16 different in development, skills, and needs from both children and older adults. The Young Adult

17 Court fills this gap by providing case management and other support for eligible young adult offenders

18 from high-risk backgrounds.

19

33. These City programs span six departments, and a total of approximately ten full-time

20 equivalent positions for these programs are funded with Byrne JAG funds. Without local and state

21 Byrne JAG funds, San Francisco could be forced to reduce or eliminate these programs, including

22 eliminating staff positions, unless other funding sources could be identified.

23 II. 24

The Trump Administration Has Engaged In Ongoing Attempts To Coerce Sanctuary Jurisdictions To Change Their Policies By Threatening To Withhold Federal Funding.

25

34. President Trump’s Administration has engaged in a longstanding campaign to

26 unlawfully withhold federal funding from so-called sanctuary jurisdictions. Despite the Byrne JAG

27 program being a formula grant—which means that Congress alone can decide who receives federal

28 funding, and how much—and in disregard of the important local purposes that Byrne JAG funding

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1 serves, the Attorney General has furthered the Trump Administration’s effort by adding an ever-

2 expanding set of immigration-related requirements to Byrne JAG funding. These requirements are

3 designed to coerce state and local jurisdictions to participate in enforcing federal immigration law and

4 abandon any state or local policies that limit or prohibit such participation. That is, the requirements

5 aim to eradicate sanctuary cities, consistent with President Trump’s longstanding threats.

6

A. President Trump First Attempted To Act By Executive Fiat.

7

35. San Francisco is one of many jurisdictions across the country that has enacted sanctuary

8 policies that seek to promote public safety locally and build trusting and supportive relationships with 9 immigrant communities. Many jurisdictions believe—and studies have shown5—that communities are

10 stronger, healthier, and safer when state and local employees decline to participate in the federal

11 government’s responsibility to enforce federal immigration law.

12

36. Nevertheless, the Trump Administration has made it their mission to eradicate

13 sanctuary cities. President Trump frequently promised to “defund” sanctuary cities, and to use the

14 threat of withholding federal funds as “a weapon” to coerce local jurisdictions to change their 15 policies.6 Shortly after President Trump took office, his press secretary confirmed that “[w]e are going

16 to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants. The

17 American people are no longer going to have to be forced to subsidize this disregard for our laws.”7

18

37. The Attorney General echoed this position. Soon after taking office, the Attorney

19 General suggested that he would use every means necessary to withhold federal funding from 20 “sanctuary cities.”8 He has broadly described sanctuary city “policies” as those requiring local law

21

5 See Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Ctr. for

22

Am. Progress (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-

23

sanctuary-policies-on-crime-and-the-economy/ (concluding that crime rates in sanctuary counties are statistically significantly lower than crime rates in non-sanctuary counties).

24

6 Alexander Mallin and Lissette Rodriguez, Trump Threatens Defunding Sanctuary States as

‘Weapon’, ABC News (Feb. 5, 2017), http://abcnews.go.com/Politics/trump-threatens-%20defunding-

25 sanctuary-states-weapon/story?id=45286642.

26

7 The White House, 1/25/17: White House Press Briefing, YouTube (Jan. 25, 2017), https://www.youtube.com/watch?v=OaPriMVvtZA.

27

8 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks on

Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

28 sessions-delivers-remarks-sanctuary-jurisdictions.

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1 enforcement officials to “refuse to cooperate with federal immigration authorities regarding illegal 2 aliens who commit crimes.”9

3

38. The Administration tried to carry through on these threats during President Trump’s

4 first week in office. President Trump issued Executive Order 13,768, which called for denying all

5 federal funding to sanctuary jurisdictions and further authorized the Attorney General to take

6 unspecified enforcement action against sanctuary cities.

7

39. The Administration touted the Executive Order as a means to achieving the President’s

8 goal of “ending sanctuary cities . . . . [T]he President has been very clear through his executive order

9 that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary 10 cities.”10 The Administration vowed that “the President is going to do everything he can within the

11 scope of the executive order to make sure that cities who don’t comply with it—counties and other

12 institutions that remain sanctuary cities don’t get federal government funding in compliance with the 13 executive order.”11

14

40. The Administration’s efforts here were stopped by this Court, which permanently

15 enjoined Section 9(a) of the Executive Order for violating the Constitution. Cty. of Santa Clara v.

16 Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017), aff’d in part, vacated in part, remanded sub nom. City

17 and Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018). The Court held, inter alia, that

18 the President—and in turn, the Attorney General and the Secretary of DHS—lacked the authority “to

19 place a new condition on federal funds . . . not authorized by Congress,” and thus had violated the

20 “fundamental constitutional structure” of the separation of powers. Id. at 1213. And the Court further

21 held that even if the executive branch could exercise that spending power, the Executive Order was

22

23

9 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks in Las

Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to Combat

24 Violent Crime (July 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-

delivers-remarks-las-vegas-federal-state-and-local-law.

25

10 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

26

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/briefingsstatements/press-briefing-press-secretary-sean-spicer-020117/.

27

11 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), https://www.whitehouse.gov/briefings-

28 statements/press-briefing-press-secretary-sean-spicer-020817/.

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1 unconstitutional because it (1) used vague language that left localities unclear how to comply with the

2 funding conditions; (2) lacked any nexus between the funds at issue and immigration enforcement; and

3 (3) sought to compel local governments to “adopt certain policies” that they had determined, in their

4 considered judgment, to be unwise. Id. at 1214–16.

5

41. The Ninth Circuit Court of Appeals affirmed the merits of this Court’s order. City and

6 County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018). The Ninth Circuit affirmed that

7 “[t]he Separation of Powers was an integral part of the Founders’ design.” Id. at 1232. And it found

8 that “the Administration ha[d] not even attempted to show that Congress authorized it to withdraw

9 federal grant moneys from jurisdictions that do not agree with the current Administration’s

10 immigration strategies.” Id. at 1234. The Ninth Circuit remanded the cases for additional factual

11 findings about the proper scope of relief. Id. at 1245.

12

B. The Attorney General Unilaterally Imposes Immigration-Related Requirements

13

On The FY 2017 Byrne JAG Program.

14

42. With its initially broad efforts to withhold federal funds to sanctuary cities put in check

15 by the courts, the Administration adopted a more targeted approach focusing on the Byrne JAG

16 program and similar grant programs that DOJ administers. As relevant here, the Attorney General

17 unilaterally imposed three new immigration-related requirements on the 2017 Byrne JAG awards—

18 requirements designed to coerce Byrne JAG recipients into enforcing federal immigration law.

19

43. First, the FY 2017 Byrne JAG Local Solicitation provided that OJP would require

20 grant applicants to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release

21 date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take

22 custody of the alien under the Immigration and Nationality Act.” FY 2017 Local Solicitation at 30

23 (attached as Exh. 1).

24

44. In the FY 2017 award documents that DOJ eventually issued, DOJ expanded on this

25 requirement (the “FY 2017 Notice Requirement”), explaining that:

26

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

27

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

28

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such facility, then such facility will honor such request and—as early as practicable

1

(see para. 4.B. of this condition)—provide the requested notice to DHS.

2 Decl. of Alan R. Hanson at ¶¶ 5-6 & Exh. B at 18, San Francisco v. Sessions, ECF No. 46-1 (“Hanson

3 Decl.”).

4

45. Second, the FY 2017 Local Solicitation provided that OJP would require grant

5 applicants to “permit personnel of the U.S. Department of Homeland Security (DHS) to access any

6 correctional or detention facility in order to meet with an alien (or an individual believed to be an

7 alien) and inquire as to his or her right to be or remain in the United States.” FY 2017 Local

8 Solicitation at 30 (attached as Exh. 1).

9

46. In the FY 2017 award documents, DOJ described this requirement regarding access to

10 correctional facilities (the “FY 2017 Access Requirement”) as requiring that:

11

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

12

color of federal law in fact are given to access any State (or Statecontracted) correctional facility for the purpose of permitting such agents to

13

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

14

States.

15 Hanson Decl. at ¶¶ 5-6 & Exh. B at 18.

16

47. Third, DOJ stated that it would require jurisdictions to certify their compliance with

17 8 U.S.C. Section 1373, which provides that a “local government entity or official may not prohibit, or

18 in any way restrict, any government entity or official from sending to, or receiving from, [federal

19 immigration officials] information regarding the citizenship or immigration status . . . of any

20 individual.” 8 U.S.C. § 1373(a). Although DOJ’s move toward requiring jurisdictions to certify

21 compliance with this section had been in progress since 2016, it was not until the FY 2017 Byrne JAG

22 application that DOJ expressly applied this requirement (the “FY 2017 Section 1373 Requirement”) to

23 all jurisdictions.

24

48. Critically, since the Trump Administration has come into office, DOJ has declared that

25 it interprets Section 1373 much more broadly than local jurisdictions like San Francisco could have

26 previously imagined—specifically, that it reads “information regarding the citizenship or immigration

27 status” to include all information that would assist federal immigration authorities to determine a

28
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1 person’s immigration status and take that individual into custody, if appropriate.12 (The FY 2017

2 Section 1373 Requirement, FY 2017 Notice Requirement, and FY 2017 Access Requirements are

3 referred to collectively as the “FY 2017 Requirements.”)

4

49. DOJ claimed that two different general statutory provisions gave the Attorney General

5 the authority to impose these FY 2017 Requirements on Byrne JAG recipients. DOJ claimed that 34

6 U.S.C. § 10153(a)(5)(D), which requires Byrne JAG grant recipients to certify that they “will comply

7 with all provisions of this part and all other applicable Federal laws” (see ¶ 23, supra), allowed the

8 Attorney General to require that grant recipients comply with Section 1373. Defs.’ Mot. for Summ. J.

9 at 17-18, San Francisco v. Sessions, ECF No. 113.

10

50. DOJ took a different approach with respect to the FY 2017 Notice and Access

11 Requirements. DOJ did not argue that either Requirement stemmed from an existing statutory

12 obligation, and thus did not assert that Section 10153(a)(5)(D)’s “all applicable laws” language

13 allowed the Attorney General to impose them. Instead, DOJ relied on a different statutory provision,

14 34 U.S.C. § 10102(a)(6)—which allows the Assistant Attorney General overseeing OJP to “exercise

15 such other powers and functions as may be vested in [him or her] pursuant to this chapter or by

16 delegation of the Attorney General, including placing special conditions on all grants, and determining

17 priority purposes for formula grants.” See Defs.’ Mot. for Summ. J. at 9-14, San Francisco v.

18 Sessions, ECF No. 113. DOJ asserted that the FY 2017 Notice and Access Requirements were special

19 conditions covered by this provision.

20

51. The new FY 2017 Requirements elicited a wave of legal challenges, and several courts,

21 including this Court, have already struck them down. Indeed, to date all the federal courts that have

22 considered those requirements have found them unlawful. See City and Cty. of San Francisco v.

23 Sessions, No. 17-CV-04642-WHO, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018); City of Chicago v.

24 Sessions, 888 F.3d 272, 276 (7th Cir. 2018) (invalidating FY 2017 Notice and Access Requirements);

25 see also City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018) (striking down all

26

27

12 Defs.’ Mot. for Summ. J. at 26, San Francisco v. Sessions, ECF No. 113 (asserting that

Section 1373 “reach[es] the types of information critical in applying the ‘immigration laws,’ including

28 the ‘removal of aliens.’”)

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1 three FY 2017 Requirements); City of Chicago v. Sessions, 321 F. Supp. 855, 874 (N.D. Ill. 2018)

2 (striking down all three FY 2017 Requirements).

3 III. The Attorney General Imposes New Requirements On FY 2018 Byrne JAG Recipients.

4

52. Now that its previous efforts to withhold federal grant funds have been held unlawful

5 by courts around the country, President Trump’s Administration is trying another approach to turn the

6 Byrne JAG program into a weapon against sanctuary jurisdictions.

7

53. On July 20, 2018, DOJ posted the State and Local Solicitations for the FY 2018 Byrne

8 JAG grants, in which it announced that it would impose a number of immigration-related requirements 9 on jurisdictions seeking 2018 Byrne JAG funding.13

10

54. Some of the new requirements set forth in the 2018 Solicitation were little more than a

11 dressed up version of the Administration’s earlier efforts: The 2018 Local Solicitation includes a

12 Section 1373 Requirement that is virtually indistinguishable from the FY 2017 version—even though

13 that Certification has now been held invalid by multiple courts. See ¶ 51, supra. And it includes

14 repackaged efforts to require jurisdictions to provide notice of an inmate’s release and access to

15 correctional facilities when immigration officials request it—requirements that DOJ now attempts to

16 tie to a statutory obligation, despite its inability to do so over the previous year of litigation regarding

17 the FY 2017 Notice and Access Requirements.

18

55. But other new requirements in the 2018 Solicitation went much further. DOJ added

19 several new requirements that imply that sanctuary jurisdictions interfere with various federal laws and

20 regulations—even though those laws and regulations impose no obligations whatsoever on states and

21 13 DOJ has also announced that it will impose similar grant requirements on a number of other
22 public safety grants, including (1) Supporting Innovation: Field-Initiated Programs to Improve Officer and Public Safety; (2) Justice Accountability Initiative: Pilot Projects Using Data-driven Systems to
23 Reduce Crime; (3) Gang Suppression Planning: Build Capacity for a Multilateral Data-Driven Strategy to Promote Public Safety; and (4) A Law Enforcement and Prosecutorial Approach To
24 Address Gang Recruitment of Unaccompanied Alien Children program. Press Release, U.S. Dep’t of Justice, Department of Justice Announces New Immigration Compliance Requirements for FY 2018
25 Grants (June 28, 2018), https://www.justice.gov/opa/pr/department-justice-announces-newimmigration-compliance-requirements-fy-2018-grants. In addition to imposing these requirements,
26 DOJ has also stated that it will “allow for preferential consideration of a grant application where the applicant plans to use immigration-cooperation tactics to address public safety in their jurisdiction.”
27 Id. In the course of announcing those new requirements, the Attorney General stated that they are designed to “encourage these ‘sanctuary’ jurisdictions to change their policies that undermine public
28 safety.” Id.

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1 local jurisdictions. And they further suggest that sanctuary jurisdictions may violate federal criminal

2 laws simply by having laws that limit entanglement with federal immigration policies. This is a

3 considerable escalation in the Trump Administration’s threats against sanctuary jurisdictions.

4

56. In October 2018, DOJ sent award documents (“Grant Award Documents”) to several

5 hundred jurisdictions—not including San Francisco—whose Byrne JAG grant applications had been 6 approved.14 For example, New Jersey received award documents, which are attached hereto as

7 Exhibit 3. The Grant Award Documents contain several immigration-related “Special Conditions.”

8

57. Some of the Special Conditions restate the requirements anticipated by the 2018

9 Solicitations and described above; for instance, the Award Documents include the same Section 1373

10 Requirement. Others, however, deviate from the requirements as described previously. See, e.g.,

11 ¶¶ 91-95, infra.

12

58. Each of the Immigration-Related FY 2018 Requirements is unlawful because DOJ

13 lacks the statutory authority to impose it. And even if DOJ had that authority, constitutional limits

14 would still prevent it from requiring compliance with these particular conditions.

15

A. The FY 2018 Section 1373 Requirement

16

59. Although multiple courts have found the FY 2017 Section 1373 Requirement invalid,

17 DOJ is attempting to impose a virtually identical requirement on 2018 Byrne JAG funds.15 See FY

18 2018 Local Solicitation at 36 (attached as Exh. 2); FY 2018 Grant Award Documents at 12-14

19 (attached as Exh. 3).

20

21

22

14 See Office of Justice Programs, Awards Made for ‘BJA FY 18 Edward Byrne Memorial Justice Assistance Grant (JAG) Program – Local Solicitation,’

23

https://external.ojp.usdoj.gov/selector/title? solicitationTitle=BJA%20FY%2018%20Edward%20Byrne%20Memorial%20Justice%20Assistance%

24 20Grant%20(JAG)%20Program%20-%20Local%20Solicitation&po=BJA (last visited Nov. 1, 2018). 15 The FY 2018 Section 1373 Requirement differs from the FY 2017 version in only two ways.

25 First, the FY 2018 Section 1373 Requirement also requires that Byrne JAG recipients certify that they

do not violate 8 U.S.C. § 1644 (“Section 1644”), which imposes identical obligations to those that

26 Section 1373 itself mandates. FY 2018 Local Solicitation at 36 (attached as Exh. 2); see also id. at 42

(attached as Exh. 2). Second, the FY 2018 Section 1373 Requirement demands that jurisdictions

27 seeking to accept a FY 2018 Byrne JAG award provide OJP with “[i]nformation regarding

Communications with the Department of Homeland Security (DHS) and/or Immigration and Customs

28 Enforcement (ICE).” Id. at 27 (attached as Exh. 2).

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1

60. As it did for FY 2017, DOJ is requiring San Francisco to certify that, as to the “program

2 or activity” funded with Byrne JAG dollars, San Francisco does not have in effect, purport to have in

3 effect, or is subject to or bound by “any prohibition or any restriction . . . that deals with either (1) a

4 government entity or –official sending or receiving information regarding citizenship or immigration

5 status as described in 8 U.S.C. §§ 1373(a) and 1644; or (2) a government entity or agency sending to,

6 requesting or receiving from, maintaining, or exchanging information of the types (and with respect to

7 the entities) described in 8 U.S.C. § 1373(b).” FY 2018 Local Solicitation at 43 (attached as Exh. 2);

8 FY 2018 Grant Award Documents at 12-14 (attached as Exh. 3); see also FY 2017 Local Solicitation

9 at 38 (attached as Exh. 1).

10

61. Although a FY 2018 Byrne JAG applicant is not required to execute the Section 1373

11 Certification to apply for a FY 2018 Byrne JAG award, OJP has stated that an applicant will be unable

12 to accept an award until the certification is completed by the grant recipient and received by OJP. FY

13 2018 Local Solicitation at 27 (emphasis added) (attached as Exh. 2).

14

62. The Grant Award Documents confirm that prospective grant recipients must submit the

15 required certification of compliance with 8 U.S.C. 1373, executed by the Chief Legal Officer of the

16 State or local jurisdiction, in order to make a valid acceptance of the grant. See FY 2018 Grant Award

17 Documents at 12 (attached as Exh. 3).

18

63. This Court has already held that DOJ lacks the authority to impose the Section 1373

19 Requirement on Byrne JAG recipients. See City and Cty. of San Francisco v. Sessions, No. 17-CV-

20 04642-WHO, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018). The Court enjoined DOJ from “[u]sing the

21 Section 1373 certification condition, and the access and notice conditions (“Challenged Conditions”)

22 as funding restrictions for any Byrne JAG awards.” Judgment and Order, City and Cty of San

23 Francisco v. Sessions, No. 17-cv-04642-WHO (C.D. Cal. Oct. 5, 2018), ECF No. 146.

24

64. Imposing the Section 1373 Requirement on San Francisco in connection with the FY

25 2018 Byrne JAG grant violates this Court’s order.

26

65. Moreover, the Section 1373 Requirement is invalid for several reasons.

27

66. As an initial matter, Section 1373 is unconstitutional on its face.

28
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1

67. And even if the provision were constitutional, nothing in the Byrne JAG statute—or

2 any other federal law—gives the Attorney General the authority to impose this condition on the Byrne

3 JAG grant.

4

68. The Section 1373 Requirement also violates the Spending Clause because (a) it is

5 ambiguous as to what jurisdictions must do to be in compliance, and (b) it is not germane to the

6 purposes of the Byrne JAG program.

7

B. The Notice Requirement

8

69. OJP also stated in the Local Solicitation that it will require Byrne JAG recipients to

9 make certifications related to a host of other federal laws contained in the Immigration and Nationality

10 Act. Specifically, Byrne JAG applicants’ Chief Legal Officer will have to execute a document called

11 “State or Local Government: FY 2018 Certification Relating to 8 U.S.C. §§ 1226(a) & (c), 1231(a),

12 1324(a), 1357(a), & 1366(1) & (3)” (hereafter, “Immigration-Related Certification”).

13

70. The Grant Award Documents do not specifically reference the Immigration-Related

14 Certification; however, the Immigration-Related Certification is still listed on OJP’s website as one of

15 the “required certifications from applicant to the FY 2018 Byrne JAG Local program.” See

16 https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm (last visited Nov. 1, 2018). As

17 of the date of this filing, the document was most recently revised on October 25, 2018. A copy of the

18 October 25 version is attached as Exhibit 4. According to the Local Solicitation, an “applicant will be

19 unable to make a valid award acceptance” until the certification is completed and “received by OJP on

20 or before the day the unit of local government submits an executed award document.” FY 2018 Local

21 Solicitation at 27 (emphasis omitted) (attached as Exh. 2).

22

71. Among other things, the Immigration-Related Certification requires the Chief Legal

23 Officer—in San Francisco’s case, City Attorney Dennis J. Herrera—to certify that San Francisco has

24 no policies or practices that would or do impede federal officers’ exercise of authority relating to 8

25 U.S.C. Sections 1226, 1231, or 1366. See Immigration-Related Certification (attached as Exh. 4).

26 Specifically, City Attorney Herrera has to certify:

27

a. that he has conducted a “careful[] review[]” of Sections 1226(a) & (c), 1231(a),

28 and 1366(1) & (3);
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1

b. that he has conducted (or caused to be conducted) a diligent inquiry and review

2 of “the ‘program or activity’ to be funded (in whole or in part) with the federal financial assistance

3 sought by the applicant entity under this FY 2018 OJP Program” as well as “any laws, rules, policies,

4 or practices . . . that implicate any of the requirements related to” these sections; and

5

c. that, as to the “program or activity” funded with Byrne JAG dollars, San

6 Francisco does not have in effect or purport to have in effect, and is not subject to or bound by, “any

7 law, rule, policy, or practice . . . that would or does . . . impede the exercise by federal officers of

8 authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. 1366(1) or (3).” See id.

9

72. In the body of the FY 2018 Local Solicitation, OJP has given one example of conduct

10 that it believes “impedes” federal officials’ exercise of their duties under these provisions. OJP states

11 that grant recipients will be required to not “impede” the exercise of the authority of the federal

12 government under Section 1226 “specifically by requiring such recipients to provide (where feasible)

13 at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in

14 the recipient’s custody when DHS requests such notice in order to take custody of the alien pursuant to

15 the Immigration and Nationality Act.” FY 2018 Local Solicitation at 36-37 (emphasis added)

16 (attached as Exh. 2).

17

73. The Grant Award Documents also incorporate this concept in an enumerated special

18 condition. Special Condition 46 (“Noninterference . . . with federal law enforcement: Notice of

19 scheduled release”) requires grant recipients to agree that “[c]onsonant with” Sections 1226, 1231, and

20 1366, the recipient will provide “advance notice to DHS of the scheduled release date and time” for an

21 immigrant “as early as practicable.” FY 2018 Grant Award Documents at 17 (attached as Exh. 3).

22

74. Failure to comply with this special condition is considered a violation of the terms of

23 the Byrne JAG grant and may result in the termination of the award or other legal action. Id. at 2.

24

75. This requirement (the “FY 2018 Notice Requirement”) is thus nothing more than a

25 repackaged version of the FY 2017 Notice Requirement, which DOJ now for the first time attempts to

26 connect to statutory provisions. But these provisions impose no such requirement.

27

76. Section 1231 provides that “when an alien is ordered removed, the Attorney

28 General shall remove the alien from the United States within a period of 90 days” and that if the alien

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1 is “detained or confined,” the removal period begins on “the date the alien is released from . . .

2 confinement.” 8 U.S.C. § 1231(a).

3

77. Section 1226 authorizes arresting and detaining certain undocumented immigrants, and

4 provides that the federal government “shall take into custody” certain criminal aliens “when the alien

5 is released, without regard to whether the alien is released on parole, supervised release, or

6 probation . . . .” 8 U.S.C. § 1226(a) & (c)(1).

7

78. Section 1366 requires the Attorney General to submit an annual report to the House and

8 Senate Judiciary Committees detailing (1) “the number of illegal aliens incarcerated in Federal and

9 State prisons for having committed felonies,” and (2) the “programs and plans underway in the

10 Department of Justice to ensure the prompt removal from the United States of criminal aliens subject

11 to removal.” 8 U.S.C. § 1366(1) & (3).

12

79. By their own terms, these sections’ terms apply solely to the federal government—

13 indeed, solely to the Attorney General himself. They do not impose any obligations whatsoever on

14 local governments.

15

80. Nonetheless, OJP is attempting to use these sections as a hook to require state and local

16 jurisdictions to provide notice to DHS regarding the scheduled release date and time of an alien in the

17 jurisdiction’s custody.

18

81. This attempt violates the separation of powers because DOJ lacks the authority to

19 impose the FY 2018 Notice Requirement on Byrne JAG recipients. Nothing in the Byrne JAG

20 statute—or any other federal law—gives the Attorney General the authority to impose this condition.

21

82. Furthermore, the FY 2018 Notice Requirement violates the Spending Clause because:

22

a. it is ambiguous as to what jurisdictions must do to be in compliance [e.g., San

23 Francisco has no way to know whether OJP might consider other practices to “impede” federal

24 officials in performing their duties under Sections 1226, 1231, and 1366)]; and

25

b. it is not germane to the purposes of the Byrne JAG program [the FY 2018

26 Notice Requirement and the referenced US code provisions are federal civil immigration requirements

27 that have nothing to do with local criminal justice, or with any of the other purposes of the Byrne JAG

28 program].
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1

C. The Access Requirement

2

83. The Immigration-Related Certification also requires Byrne JAG recipients to make

3 assurances “relating to” 8 U.S.C. § 1357(a). It requires the Chief Legal Officer to certify that San

4 Francisco has no policies or practices that would or do impede federal officers’ exercise of authority

5 relating to Section 1357. See Immigration-Related Certification (attached as Exh. 4). Specifically, the

6 City Attorney Herrera will have to certify:

7

a. that he has conducted a “careful[] review[]” of Section 1357(a);

8

b. that he has conducted (or caused to be conducted) a diligent inquiry and review

9 of “the ‘program or activity’ to be funded (in whole or in part) with the federal financial assistance

10 sought by the applicant entity under this FY 2018 OJP Program” as well as “any laws, rules, policies,

11 or practices . . . that implicate any of the requirements related to” Section 1357(a); and

12

c. that, as to the “program or activity” funded with Byrne JAG dollars, San

13 Francisco does not have in effect or purport to have in effect, and is not subject to or bound by, “any

14 law, rule, policy, or practice . . . that would or does . . . impede the exercise by federal officers of

15 authority under 8 U.S.C. § 1357(a).” See id.

16

84. Section 1357 provides, inter alia, that “[a]ny officer or employee of the [federal]

17 Service . . . shall have power without warrant . . . to interrogate any alien or person believed to be an

18 alien as to his right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1).

19

85. By its own terms, this section does not impose any obligations at all on local

20 governments. It applies solely to the federal government—specifically to federal immigration officers

21 and federal immigration employees. Nonetheless, OJP attempts to use it as a hook to require state and

22 local jurisdictions to permit personnel of the Department of Homeland Security to access correctional

23 facilities.

24

86. As reflected in the Local Solicitation, DOJ reads Section 1357 in conjunction with 8

25 C.F.R. § 287.5(a)(1)—which states that an immigration officer can exercise this interrogation power

26 “anywhere in or outside the United States”—to mean that immigration officials have a right to

27 interrogate anyone believed to be an alien any place and any time, without obtaining any form of

28 warrant. See FY 2018 Local Solicitation at 37 (attached as Exh. 2).

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1

87. The Grant Award Documents also incorporate this concept in an enumerated special

2 condition. Special Condition 45 (“Noninterference . . . with federal law enforcement: Interrogation of

3 certain aliens”) requires grant recipients to agree that “[c]onsonant with” federal law, including

4 Section 1357 and 8 C.F.R. 287.5(a)(1), the recipient will not “imped[e] access to any State or local

5 government (or government-contracted) correctional facility by [federal] agents for the purpose of

6 ‘interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in

7 the Unites States.’” FY 2018 Grant Award Documents at 16 (attached as Exh. 3) (second and third

8 alterations in original).

9

88. This requirement (the “FY 2018 Access Requirement”) is nothing more than a

10 repackaged version of the FY 2017 Access Requirement, which DOJ now—for the first time—

11 attempts to connect directly to a statutory provision rather than to the general authority for “special

12 conditions.”

13

89. The FY 2018 Access Requirement violates the separation of powers because DOJ lacks

14 the authority to impose the FY 2018 Access Requirement on Byrne JAG recipients. Nothing in the

15 Byrne JAG statute—or any other federal law—gives the Attorney General the authority to impose this

16 condition.

17

90. Furthermore, the FY 2018 Access Requirement violates the Spending Clause because:

18

a. it is ambiguous as to what jurisdictions must do to be in compliance [e.g., San

19 Francisco has no way to know whether OJP might consider other practices to “impede” federal

20 officials in performing their Section 1357 duties]; and

21

b. it is not germane to the purposes of the Byrne JAG program [the FY 2018

22 Access Requirement and Section 1357 are federal civil immigration requirements that have nothing to

23 do with local criminal justice, or with any of the other purposes of the Byrne JAG program].

24

D. The Section 1324 Requirement

25

91. The Local Solicitation indicated that DOJ was also imposing a new requirement on

26 grant recipients relating to 8 U.S.C. Section 1324. Section 1324 forbids any “person,” in “knowing or

27 in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in

28 violation of law,” to “conceal[], harbor[], or shield[] from detection or attempt[] to conceal, harbor, or

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1 shield from detection, such alien in any such place, including any building or any means of

2 transportation” or to “engage in any conspiracy to commit any of the preceding acts, or . . . aid[] or

3 abet[] the commission of any of the preceding acts.” 8 U.S.C. § 1324(a).

4

92. The Local Solicitation stated that “generally speaking,” the award conditions would

5 require recipients to agree “[n]ot to violate, or aid or abet any violation of” Section 1324(a). FY 2018

6 Local Solicitation at 36 (attached as Exh. 2).

7

93. Similarly, the version of the Immigration-Related Certification attached to the Local

8 Solicitation would have required the recipient’s Chief Legal Officer to certify that, as to the “program

9 or activity” funded with Byrne JAG dollars, San Francisco does not have in effect or purport to have in

10 effect, and is not subject to or bound by, “any law, rule, policy, or practice . . . that would or does . . .

11 violate, or aid or abet any violation of, 8 U.S.C. § 1324(a).” Id. at 45.

12

94. In the Grant Award Documents, however, DOJ shifted focus. Special Condition 44

13 (“Noninterference . . . with federal law enforcement: No public disclosure of certain law enforcement

14 sensitive information”) states that “[c]onsistent with the purposes and objectives” of federal laws,

15 including Section 1324:

16

no public disclosure may be made of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection . . .

17

any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12 – without regard to whether such disclosure would constitute

18

(or could form a predicate for) a violation of [Section 1324].

19 Grant Award Documents at 15 (attached as Exh. 3).

20

95. Reflecting this change, the October 25, 2018 version of the Immigration-Related

21 Certification no longer contains a freestanding requirement of general compliance with Section 1324.

22 Rather, it requires City Attorney Herrera—as the Chief Legal Officer of San Francisco—to certify:

23

I (and also the applicant entity) understand that USDOJ will—by award condition—require States and local governments . . . not to publicly disclose

24

federal law enforcement information in an attempt to conceal, harbor, or shield certain individuals from detection, whether or not in violation of 8 U.S.C. §

25

1324(a) or other laws.

26 Immigration-Related Certification ¶ 3 (attached as Exh. 4).

27

28
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1

96. DOJ lacks the statutory authority to impose this Requirement (the “Section 1324

2 Requirement”) on Byrne JAG recipients. Nothing in the Byrne JAG statute—nor any other federal

3 law—gives the Attorney General the authority to impose this condition.

4

97. Furthermore, the FY 2018 Access Requirement violates the Spending Clause because:

5

a. it is ambiguous as to what jurisdictions must do to be in compliance [e.g., the

6 special condition states that disclosure of information may be a violation of the Requirement “without

7 regard to whether such disclosure would constitute (or could form a predicate for) a violation” of

8 Section 1324, but provides no guidance on what conduct that does not violate Section 1324 would

9 nonetheless constitute a violation of the Section 1324 Requirement];

10

b. it is not germane to the purposes of the Byrne JAG program [the Section 1324

11 Requirement is a federal civil immigration requirement that has nothing to do with local criminal

12 justice, or with any of the other purposes of the Byrne JAG program].

13

98. Collectively, this Complaint refers to the FY 2018 Section 1373 Requirement, the FY

14 2018 Notice Requirement, the FY 2018 Access Requirement, and the Section 1324 Requirement as the

15 “Challenged FY 2018 Requirements.”

16 IV. 17 18

San Francisco Faces Immediate Injury From The Challenged FY 2018 Byrne JAG Requirements.
A. San Francisco Cannot Certify Compliance With The Challenged FY 2018 Byrne JAG Requirements Without Changing Its Laws And Policies.

19

99. San Francisco is unable to execute the Immigration-Related Certification.

20 San Francisco’s existing laws and policies prevent it from certifying that it complies with several of

21 the new requirements that DOJ has imposed. And as to others, the ambiguity regarding the meaning

22 and scope of the requirements creates significant uncertainty for San Francisco—uncertainty that 23 makes it impossible for San Francisco to execute the Immigration-Related Certification.16

24

25

16 Based on this Court’s ruling that San Francisco’s current laws and policies comply with

Section 1373 (see City and Cty. of San Francisco v. Sessions, No. 17-CV-04642-WHO, 2018 WL

26 4859528, at *28-30 (N.D. Cal. Oct. 5, 2018)), San Francisco believes it could sign the Section 1373

certification. But it should not have to. San Francisco should not be forced to comply with an

27 unconstitutional grant requirement—much less an unconstitutional law. It should be able to change its

laws as it deems appropriate without concern that this will cause it to be deprived of important Byrne

28 JAG funds.

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1

100. For example, the San Francisco Sheriff’s Department (“SFSD”) has policies regarding

2 access to jails for ICE officials enforcing civil immigration laws. Specifically, the Sheriff’s

3 Department policy prohibits Sheriff’s Department employees from providing ICE agency

4 representatives, or any other individual conducting civil immigration enforcement, access to inmates

5 in jail, access to SFSD computers, databases and logs, release dates and times for inmates, and home 6 or work contact information.17

7

101. These policies make it difficult, if not impossible, for San Francisco to comply with the

8 FY 2018 Access Requirement. See ¶¶ 83-86, supra.

9

102. Similarly, San Francisco has laws regarding City employees’ authority to provide

10 advance notification of an individual in custody’s release date. Specifically, Chapter 12I of

11 San Francisco’s Administrative Code—part of San Francisco’s Sanctuary City laws—prohibits San

12 Francisco law enforcement officials from responding to a federal immigration officer’s request for

13 advance notification of the date and time an individual in San Francisco’s custody is being released, 14 unless the individual in custody meets certain criteria. See S.F. Admin. Code § 12I.3(c)-(d).18

15

103. This law makes it difficult, if not impossible, for San Francisco to comply with the FY

16 2018 Notice Requirement. See ¶¶ 69-73, supra.

17

18

19

20 17 ICE requests for assistance with criminal investigations are directed to the Sheriff, who
21 directs any assistance to ICE agents as she deems appropriate.

22

18 These laws serve important public purposes, as the legislative findings set forth in Chapter 12I confirm. The Board of Supervisors has declared:

23

Fostering a relationship of trust, respect, and open communication between City

employees and City residents is essential to the City’s core mission of ensuring

24

public health, safety, and welfare, and serving the needs of everyone in the

community, including immigrants. The purpose of this Chapter 12I, as well as

25

of Administrative Code Chapter 12H, is to foster respect and trust between law

enforcement and residents, to protect limited local resources, to encourage

26

cooperation between residents and City officials, including especially law

enforcement and public health officers and employees, and to ensure

27

community security, and due process for all.

28 See Section 12I.1.
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B. The Challenged FY 2018 Requirements Put San Francisco To An Unconstitutional

1

Choice.

2

104. The Challenged FY 2018 Requirements create an untenable choice for San Francisco,

3 when it is faced with the decision whether to accept the FY 2018 Byrne JAG award. San Francisco

4 must choose between amending its laws and policies to allow it to execute the Immigration-Related

5 Certification, or forgoing hundreds of thousands of dollars in important criminal justice funding.

6

105. As described above, San Francisco cannot sign the Immigration-Related Certification in

7 light of various ambiguities and potential conflicts with San Francisco’s laws and policies. If San

8 Francisco maintains those laws and policies and declines to execute the Immigration-Related

9 Certification, it will have to forgo direct FY 2018 Byrne JAG funding. This is because recipients are

10 required to certify that they comply with all applicable award conditions and execute all necessary

11 certifications in order to accept a FY 2018 Byrne JAG award.19

12

106. San Francisco will also have to forgo the pass-through grant it expects to receive from

13 the State of California.

14

107. On information and belief, the State of California has applied for FY 2018 Byrne JAG

15 funds. Once the State of California receives Byrne JAG funds, it issues a request for proposals

16 (“RFP”) for local jurisdictions to apply for pass-through funds. San Francisco has applied for, and

17 received, pass-through Byrne JAG funds in the past pursuant to this RFP process. But to receive pass-

18 through Byrne JAG funds, San Francisco would be required to submit assurances that it will comply

19 with all award requirements.

20

108. The loss of this funding will have significant negative impacts on San Francisco. The

21 variety of programs that Byrne JAG funding supports will be placed in jeopardy. San Francisco could

22 be forced to reduce or eliminate these programs, and the staff positions they support, unless additional

23 funding sources could be identified.

24

25

26 19 When it submitted its application for FY 2018 Byrne JAG funding, San Francisco included a
27 reservation of rights regarding the Challenged FY 2018 Requirements. San Francisco made clear that it was not certifying that it would comply with the Challenged FY 2018 Requirements, and stated that
28 it was planning to challenge those requirements in litigation.

Amended Complaint; CCSF v. Sessions Case No. 3:18-cv-05146-WHO

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1

109. Alternatively, San Francisco could change its local laws and policies to attempt to

2 comply with the Challenged FY 2018 Requirements—a difficult endeavor given the significant

3 ambiguities about the scope and meaning of many of those Requirements.

4

110. More significantly, changing its local laws and policies would also harm San Francisco

5 by forcing it to abandon its considered and constitutionally protected policy judgments.

6 San Francisco’s Sanctuary City laws and policies reflect lawmakers’ considered judgment that public

7 safety, public health, and community cohesion are best served by limiting local employees’

8 entanglement with federal immigration priorities to the extent possible under federal law. By

9 threatening to withhold funds, DOJ seeks to intrude on San Francisco’s sovereign authority to make

10 such policy choices.

11

COUNT ONE: SEPARATION OF POWERS

12

THE CHALLENGED FY 2018 CONDITIONS VIOLATE SEPARATION OF POWERS

13

111. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

14 if fully set forth herein.

15

112. In July 2018, Defendants issued a solicitation seeking applications for the FY 2018

16 Byrne JAG program.

17

113. San Francisco has applied for the FY 2018 Byrne JAG program.

18

114. In October 2018, Defendants sent grant award documents to several hundred

19 jurisdictions, which include several immigration-related special conditions.

20

115. The Constitution vests Congress with legislative powers, see U.S. Const. art. 1, § 1, and

21 the spending power, see U.S. Const. art. 1, § 8, cl. 1. Absent a statutory provision or an express

22 delegation, only Congress is entitled to attach conditions to federal funds.

23

116. Congress has not enacted the Challenged FY 2018 Requirements as part of any

24 statutory scheme.

25

117. Congress has not enacted the Challenged FY 2018 Requirements as applicable to Byrne

26 JAG funds.

27

118. Congress has not delegated to Defendants the authority to impose the Challenged FY

28 2018 Requirements on Byrne JAG funds.

Amended Complaint; CCSF v. Sessions

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1

119. Defendants are unilaterally imposing the Challenged FY 2018 Requirements without

2 authorization from Congress.

3

120. For these reasons, DOJ in imposing the Challenged FY 2018 Requirements

4 unconstitutionally intrudes upon and usurps powers that belong to Congress, violating principles of

5 separation of powers.

6

COUNT TWO: SPENDING CLAUSE

7

THE CHALLENGED FY 2018 CONDITIONS VIOLATE THE SPENDING CLAUSE

8

121. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

9 if fully set forth herein.

10

122. As described above, the Challenged FY 2018 Requirements violate separation of

11 powers principles because they are not authorized by Congress, expressly or impliedly.

12

123. Even if Congress had delegated its authority to impose conditions on Byrne JAG funds,

13 the Challenged FY 2018 Requirements would violate the Spending Clause by:

14

a. imposing conditions that are ambiguous, see Pennhurst State Sch. & Hosp. v.

15 Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate under the

16 spending power . . . rests on whether the State voluntarily and knowingly accepts [Congress’

17 conditions]… There can, of course, be no knowing acceptance if a State is unaware of the conditions

18 or is unable to ascertain what is expected of it… [I]f Congress intends to impose a condition on the

19 grant of federal moneys, it must do so unambiguously.” ) (citations omitted); and

20

b. imposing conditions that are not germane to the stated purposes of the Byrne

21 JAG funds, see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (“[C]onditions on federal grants

22 might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or

23 programs.’”) (citation omitted).

24

COUNT THREE: TENTH AMENDMENT

25

8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL

26

124. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

27 if fully set forth herein.

28
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1

125. On its face, Section 1373 commandeers state and local governments in violation of the

2 Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign

3 capacity,” Reno v. Condon, 528 U.S. 141,150 (2000), limiting state authority to regulate internal

4 affairs and determine the duties and responsibilities of state employees, Gregory v. Ashcroft, 501 U.S.

5 452,460 (1991), and ultimately forcing states to allow their employees to use state time and state

6 resources to assist in the enforcement of federal statutes regulating private individuals, Reno, 528 U.S.

7 at 151, and to provide information that belongs to the state and is available to them only in their

8 official capacity, Printz v. United States, 521 U.S. 898, 932-33 & n.17 (1997).

9

126. As applied to state and local Sanctuary City laws, like San Francisco Administrative

10 Code Chapters 12H and 12I, which were enacted to further legitimate local interests grounded in the

11 basic police powers of local government and related to public health and safety, Section 1373(a)

12 commandeers state and local governments and violates the Tenth Amendment to the United States

13 Constitution.

14

15

PRAYER FOR RELIEF

16

Wherefore, San Francisco prays that the Court grant the following relief:

17

1. Declare the Challenged FY 2018 Requirements Defendants have imposed on the Byrne

18 JAG program unconstitutional;

19

2. Permanently enjoin Defendants from using the Challenged FY 2018 Requirements as

20 funding restrictions for any Byrne JAG awards, now or in the future;

21

3. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face;

22

4. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for

23

receiving federal funds;

24

5. Award San Francisco reasonable costs and attorneys’ fees; and

25

6. Grant any other further relief that the Court deems fit and proper.

26

27

28
Amended Complaint; CCSF v. Sessions Case No. 3:18-cv-05146-WHO

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1 Dated: November 1, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Amended Complaint; CCSF v. Sessions Case No. 3:18-cv-05146-WHO

DENNIS J. HERRERA City Attorney JESSE C. SMITH RONALD P. FLYNN YVONNE R. MERÉ TARA M. STEELEY SARA J. EISENBERG AILEEN M. McGRATH Deputy City Attorneys
By: /s/ Dennis J. Herrera DENNIS J. HERRERA City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

28

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 Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 1 of 31

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

CITY AND COUNTY OF SAN FRANCISCO,

8

Plaintiff,

9

v.

10

JEFFERSON B. SESSIONS, et al.,

11

Defendants.

12

Case No. 18-cv-05146-WHO
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT
Re: Dkt. Nos. 27, 30

13

STATE OF CALIFORNIA,

Case No. 18-cv-05169-WHO

14

Plaintiff,

15

v.

16

JEFFERSON B. SESSIONS, et al.,

17

Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT

18

Re: Dkt. Nos. 25, 29

19

20

INTRODUCTION

21

Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program funds have

22 been the focal point of an ongoing dispute between the federal, state, and local governments for

23 the past two years. After President Trump assumed office, he issued an Executive Order

24 announcing a policy of withholding federal grants from “sanctuary jurisdictions,” which was

25 challenged by the City and County of San Francisco and the County of Santa Clara. I granted

26 summary judgment to prevent the Executive Order from being enforced; the Ninth Circuit

27 affirmed. City and Cty. of San Francisco v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017), aff’d

28 in part, vacated in part, remanded sub nom. City and Cty. of San Francisco v. Trump, 897 F.3d

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 2 of 31

United States District Court Northern District of California

1 1225 (9th Cir. 2018).

2

Shortly thereafter, former Attorney General Jefferson Beauregard Sessions III imposed

3 three new conditions on the receipt of Byrne JAG funding for fiscal year 2017: the access, notice,

4 and Section 1373 certification conditions. These conditions required Byrne JAG applicants to

5 provide Immigration and Customs Enforcement (“ICE”) with “access” to correctional facilities for

6 immigration enforcement purposes, “notice” of detainee release dates, and to certify compliance

7 with 8 U.S.C. § 1373. California and San Francisco sued the DOJ for withholding their fiscal year

8 2017 grant funds after they asserted compliance with the new conditions. I found that the

9 challenged conditions were unlawful on multiple grounds and held that Section 1373 was

10 unconstitutional. City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 934 (N.D. Cal.

11 2018), judgment entered sub nom. California ex rel. Becerra v. Sessions, No. 3:17-CV-04701-

12 WHO, 2018 WL 6069940 (N.D. Cal. Nov. 20, 2018).

13

For fiscal year 2018, defendants Acting Attorney General Matthew G. Whitaker and the

14 Department of Justice (collectively, the “DOJ”) continued to include essentially the same fiscal

15 year 2017 challenged conditions as well as two other new conditions. The additional 2018

16 conditions require Byrne JAG recipients: (i) not to publicly disclose sensitive federal law

17 enforcement information in an attempt to harbor or shield “fugitives from justice” or “aliens” in

18 violation of federal immigration law (the “nondisclosure condition”); and (ii) to provide

19 information about the applicant’s laws and policies for purposes of assessing compliance with

20 Section 1373 (the “information condition”).

21

California and San Francisco have sued the DOJ challenging five conditions in the fiscal

22 year 2018 Byrne JAG Program. The DOJ filed a partial motion to dismiss or a partial motion for

23 summary judgment, seeking dismissal or judgment on California’s and San Francisco’s claims

24 regarding the nondisclosure and information conditions. The DOJ has preserved its arguments on

25 the access, notice, and certification conditions from the prior case on fiscal year 2017 funds, which

26 apply to some of the fiscal year 2018 Byrne JAG funding.

27

California and San Francisco responded with their own motions for summary judgment.

28 They seek declaratory relief that the challenged conditions are unconstitutional violations of the

2

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1 separation of powers and the Spending Clause of the United States Constitution and to enjoin the

2 DOJ from enforcing the challenged conditions or withholding Byrne JAG funds based on those

3 requirements. California also brings an Administrative Procedure Act claim and seeks mandamus

4 relief compelling the DOJ to issue California its fiscal year 2018 Byrne JAG awards without the

5 challenged conditions.

6

Only the nondisclosure condition raises a substantive concern that I have not addressed,

7 and it fails for somewhat different reasons than the other conditions. Left to its core—that local

8 jurisdictions should not publicize confidential federal law enforcement actions that are disclosed to

9 local authorities to insure deconfliction and protect local law enforcement and residents—seems

10 self-evident and reasonable. But DOJ did not leave it to its core, and instead larded it with broad-

11 ranging, ambiguous language that would allow DOJ the discretion to coerce local jurisdictions to

12 comply with its interpretation of the statutes in dispute in these cases. The exercise of such

13 discretion is all the more suspect in light of the active litigation over immigration issues between

14 California jurisdictions and the federal government, and the threat made by Administration

15 officials to commence criminal prosecution of California officials who follow that sovereign’s

16 interpretation of the law. See, e.g., CA Request for Judicial Notice (“RJN”), Ex. F (DHS

17 Secretary Nielsen confirming to the Senate Judiciary Committee that DOJ was “reviewing what

18 avenues might be available” to bring criminal charges against elected officials abiding by

19 sanctuary policies.).

20

Accordingly, for the reasons discussed more fully below, I find that (i) the challenged

21 conditions are ultra vires and violate the separation of powers, (ii) Section 1373 is

22 unconstitutional, (iii) the Attorney General exceeds the Spending Clause in violation of the United

23 States Constitution by imposing ambiguous challenged conditions in the fiscal year 2018 Byrne

24 JAG Program, (iv) the conditions are arbitrary and capricious, (v) California is entitled to the

25 mandamus relief it seeks, and (vi) a nationwide injunction is warranted but stayed. California’s

26 and San Francisco’s motions for summary judgment are granted, and the DOJ’s motions are

27 denied.

28 3

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1

BACKGROUND

2 I. FACTUAL BACKGROUND

3

A. The Immigration and Nationality Act

4

Congress reinforced the Executive Branch’s inherent authority “over the subject of

5 immigration and the status of aliens” when it passed the Immigration and Nationality Act (“INA”),

6 8 U.S.C. § 1101 et seq. Arizona v. United States, 567 U.S. 387, 394 (2012). The INA authorizes

7 the Department of Homeland Security (“DHS”) as well as the DOJ and other federal agencies to

8 enforce the immigration laws. See, e.g., 8 U.S.C. § 1227(a)(2) (allowing the Attorney General or

9 Secretary of Homeland Security to order removal of certain classes of immigrants). It also

10 contemplates coordination between federal officials and state or local jurisdictions. See Arizona,

11 567 U.S. at 411 (“Consultation between federal and state officials is an important feature of the

12 immigration system.”). Various provisions seek to accomplish such coordination and information

13 sharing when possible. See 8 U.S.C. § 1252c (authorizing state and local officers to make arrests

14 for unlawful reentry); 8 U.S.C. § 1324(c) (authorizing state and local officers to make arrests for

15 INA violations); 8 U.S.C. § 1357(g) (authorizing state and local officers to perform functions of a

16 federal immigration officer).

17

B. The Byrne JAG Program

18

The Byrne JAG program is a formula grant program that is administered by the Bureau of

19 Justice Assistance, a department within the Office of Justice Programs (“OJP”). See 34 U.S.C. §

20 10156(d)(2)(A) (stating that “the Attorney General shall allocate to each unit of local government”

21 funds determined by the established formula). Grant funding is awarded as a function of

22 population and violent crime rate. See 34 U.S.C. § 10156(a). Eligible grantees are entitled to their

23 awards so long as their Byrne JAG funds go toward programs in one of eight program areas: (1)

24 law enforcement, (2) prosecution and court, (3) prevention and education, (4) corrections and

25 community corrections, (5) drug treatment and enforcement, (6) planning, evaluation, and

26 technology improvement, (7) crime victim and witness programs, and (8) mental health programs.

27 See 34 U.S.C. § 10152(a)(1)(A)–(H).

28

Under the formula, California is expected to receive $28.9 million Byrne JAG funds in

4

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1 fiscal year 2018, including $18 million going to the Board of State and Community Corrections

2 (“BSCC”). Jolls Decl. ¶ 5. The BSCC plans to continue using the funds for education and crime

3 prevention, law enforcement, and court programs, as it has in previous years. Id. ¶¶ 9–10

4 (detailing the types of sub-grants that BSCC has provided in previous years, and the focus on

5 education and crime prevention programs for the next three-year grant cycle).

6

San Francisco is expected to receive $489,966 in direct Byrne JAG funding and

7 approximately $1 million in state sub-grant funding under the formula. Chyi Decl. ¶ 8, Ex. C.

8 San Francisco uses the funding to support law enforcement programs aimed at reducing the drug

9 trade and recidivism among repeat offenders, and for programs connecting those with substance

10 and mental health problems to appropriate services. Id. ¶¶ 10–11, 17. As in fiscal year 2017, San

11 Francisco faces the prospect of eliminating approximately ten full-time positions spanning six

12 departments without Byrne JAG funding. Id. ¶¶ 10–19; see also City & Cty. of San Francisco,

13 349 F. Supp. 3d at 936 (discussing San Francisco’s intended uses for JAG funds).

14

California and San Francisco received their fiscal year 2018 Byrne JAG award documents

15 on November 16, 2018. See DOJ RJN Exs. C, D.1 Because the award documents contained the

16 challenged conditions at issue in this litigation, California and San Francisco requested and

17 received an extension from the DOJ to accept the awards until 30 days after a Judgment is entered

18 in their respective cases. Chyi Decl. ¶ 15–16; Sherman Decl. at Ex. 7.

19

C. Fiscal Year 2017 Byrne JAG Program Conditions and Related Litigation

20

In 2016, the DOJ announced that Section 1373 would be an “applicable law” for the Byrne

21 JAG Program. See Admin. Record (“AR”)-384 (SF Dkt. No. 26; CA Dkt. No. 24). For the

22 following fiscal year (2017), the Byrne JAG Solicitation formalized the announcement, requiring a

23

24

1 The parties requested judicial notice of various public records, government documents, or court filings, whose accuracy and authenticity are not disputed. Government records such as letters,

25

memos, bulletins, or other reports or statements of public record are judicially noticeable. See, e.g., Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005) (taking judicial notice of government

26

administrative bulletin); Fed. R. Evid. 201(b). Court records from other proceedings are also susceptible to judicial notice if relevant to this litigation. See U.S. ex rel. Robinson Rancheria

27

Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding that a court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those

28

proceedings have a direct relation to matters at issue”). Thus, the requests for judicial notice are GRANTED. See SF Dkt. Nos. 27-1, 31, 57; CA Dkt. Nos. 25-1, 29-2, 41-1, 45.

5

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1 certification of compliance with Section 1373. AR-994, 1032-33. The DOJ additionally required

2 Byrne JAG funding recipients to have policies allowing federal agents “access” to any state or

3 local government correctional facility, and to provide “notice” of scheduled release dates for non-

4 citizens in those facilities. AR-1687–88.

5

I found, along with every court to hear challenges to the fiscal year 2017 Byrne JAG

6 conditions, that these conditions were unlawful. See City & Cty. of San Francisco, 349 F. Supp.

7 3d at 940–41 (summarizing related litigation at the time concerning the fiscal year 2017 Byrne

8 JAG conditions); see also City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018)

9 (invalidating notice and access conditions); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289

10 (E.D. Pa. 2018) (invalidating the notice, access, and Section 1373 certification condition).

11

Since then, the Third Circuit has affirmed in part the City of Philadelphia decision. City of

12 Philadelphia v. Attorney Gen. of United States of Am., No. 18-2648, 2019 WL 638931 (3d Cir.

13 Feb. 15, 2019). The court found that no authority was conferred to the DOJ by Congress via the

14 Byrne JAG statute itself or other statutes at issue here such as Section 10102 or Section

15 10153(a)(5)(D). Id. at *10. Several more courts also found the 2017 challenged conditions

16 unlawful. In States of New York, et al. v. Dep't of Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018),

17 the court granted plaintiffs’ motion for partial summary judgment. It found the 2017 conditions

18 were ultra vires under the Administrative Procedure Act (“APA”), id. at 231, Section 1373 was

19 unconstitutional under the anticommandeering doctrine of the Tenth Amendment, id. at 237, the

20 conditions violated the separation of powers, id. at 238, and the conditions were arbitrary and

21 capricious under the APA, id. at 241. Similarly, in Los Angeles v. Sessions, No. 17-cv-7215 (C.D.

22 Cal. Sept. 13, 2018) (Dkt. No. 93) the court granted plaintiff’s motion for preliminary injunction

23 of the 2017 challenged conditions. It found that 34 U.S.C. § 10153(a), the provision providing the

24 Attorney General with authority over the “form” of the application, did not indicate authority to

25 add civil immigration conditions. Id. at 3.

26

In City of Los Angeles v. Sessions, No. 18-cv-7347 (C.D. Cal. Feb. 15, 2019), the district

27 court addressed the same fiscal year 2018 Byrne JAG conditions at issue here and granted

28 plaintiff’s motion for summary judgment while denying defendant’s motion for partial dismissal

6

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1 or partial summary judgment. See Joint Supp. RJN, Ex. A. It found no authority conferred by

2 Section 10153(a)(5)(D) to support the nondisclosure condition, and it found that the information

3 condition exceeded the “programmatic and financial information” that the Attorney General was

4 otherwise authorized to require of state and local governments. Id. at 7–8. Lastly, the court

5 granted a program-wide injunction and permanently enjoined the defendants from imposing the

6 challenged conditions in fiscal year 2018 Byrne JAG awards. Id. at 10.

7

D. Challenged Conditions in the Fiscal Year 2018 Byrne JAG Program

8

The DOJ continued to utilize requirements that are functionally equivalent to the three

9 challenged conditions in the prior fiscal year 2017 JAG Solicitation and added two new conditions

10 in fiscal year 2018. California and San Francisco challenge each of these five conditions in the

11 2018 Byrne JAG Solicitation. See SF First Amended Compl. (“FAC”) (Dkt. No. 22); CA FAC

12 (Dkt. No. 20). The DOJ moves for partial dismissal or summary judgment on the two new

13 conditions.

14

The 2018 Solicitation requires California and San Francisco, through their chief legal

15 officer, to continue to certify compliance with Section 1373. It modifies this requirement

16 somewhat by also requiring certification of compliance with 8 U.S.C. § 1644. See DOJ RJN Ex.

17 D ¶¶ 41–43. Section 1644 contains nearly identical language as Section 1373 and prohibits

18 restrictions on communicating immigration information. AR-1258, 1264.

19

The 2018 Solicitation also requires the chief legal officer to certify that the applying

20 jurisdiction will not interfere with law enforcement in their access to correctional facilities or in

21 the removal process by failing to provide notice of scheduled release dates and times. See DOJ

22 RJN Ex. D ¶¶ 45–46. Put another way, the Solicitation requires the applicant not to have laws,

23 policies, or practices that “impede” federal officers from exercising their authority under 8 U.S.C.

24 § 1357(a) and which impede their authority “relating to” 8 U.S.C. §§ 1226(a), 1226(c), 1231(a)(4),

25 1366(1), and 1366(3). AR-1233, 1241–42, 1250, 1260, 1268. Section 1357(a) describes

26 immigration officer authority to “interrogate any alien,” “arrest any alien,” or exercise other

27 proscribed powers without a warrant. 8 U.S.C. § 1357(a). Additionally, Sections 1226, 1231, and

28 1366 involve immigration officer powers to make arrests, detain, and release undocumented 7

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1 persons, and to make annual reports on certain “criminal alien” statistics.

2

The nondisclosure and the information conditions appear for the first time in the fiscal year

3 2018 Byrne JAG funding conditions. The nondisclosure condition provides that:

4

Consistent with the purposes and objectives of federal law enforcement statutes and

5

federal criminal law (including 8 U.S.C. 1324 and 18 U.S.C. chs. 1, 49, 227), no public disclosure may be made of any federal law enforcement information in a direct or

6

indirect attempt to conceal, harbor, or shield from detection any fugitive from justice

under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United

7

States in violation of 8 U.S.C. ch. 12 – without regard to whether such disclosure would

constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8

8

U.S.C. 1324(a).

9 See DOJ RJN Ex. D ¶ 44.

10

The information condition, which the DOJ disputes is a condition in the first instance,

11 requires award recipients to collect certain information from sub-grant recipients. Id., Ex. D ¶ 47.

12 For example, California would not be able to authorize a sub-grant “unless it first obtains from the

13 proposed subrecipient responses to the questions identified in the program solicitation as

14 ‘Information regarding Communication with the Department of Homeland Security (DHS) and/or

15 Immigration and Customs Enforcement (ICE).” Id. Those questions include whether the

16 jurisdiction has “any laws, policies, or practices related to whether, when, or how employees may

17 communicate with DHS or ICE,” and require applicants to provide a copy of the law or policy,

18 describe the practices, and explain how it complies with Section 1373. See FAC at 52 (SF Dkt.

19 No. 22-2; CA Dkt. No. 20-1).

20

E. California and San Francisco’s Laws and Policies

21

The plaintiffs’ asserted interests implicated by the Byrne JAG Program challenged

22 conditions have been discussed thoroughly in the prior litigation of the fiscal year 2017 conditions.

23 See City & Cty. of San Francisco, 349 F. Supp. 3d at 937–40 (summarizing California and San

24 Francisco laws and policies relevant to the 2017 conditions). The California Legislature sought, in

25 its laws and policies, to use its “limited resources for public safety rather than immigration

26 enforcement” after concluding that limited involvement with immigration enforcement resulted in

27 safer communities. Id. at 938 (citing Cal. Gov. Code § 7284.2(f)). It also based policies on local

28 law enforcement’s belief in the importance of maintaining trust with immigrant communities. Id.

8

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1 San Francisco agreed, providing its own evidence in support of the importance that trust holds for

2 “greater reporting of crimes, more cooperative witnesses, and more assistance with law

3 enforcement investigations.” Id. at 941.

4 II. PROCEDURAL BACKGROUND

5

In August 2018, California and San Francisco filed lawsuits challenging the DOJ’s

6 imposition of the five challenged conditions on Byrne JAG funding in fiscal year 2018. See

7 Complaint (SF Dkt. No. 1; CA Dkt. No. 1). The plaintiffs filed their first amended complaints in

8 November 2018, and the DOJ filed a motion for partial dismissal or partial summary judgment in

9 December. See DOJ Partial Mot. to Dismiss or Summ. J. (SF Dkt. No. 27; CA Dkt. No. 25). In

10 response, California and San Francisco filed motions for summary judgment. See Mots. For

11 Summ. J. (SF Dkt. No. 30; CA Dkt. No. 29). Amici have also filed briefs in both matters.2

12

LEGAL STANDARD

13 I. MOTIONS TO DISMISS

14

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to

15 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

16 (2007). A claim is plausible when the plaintiff pleads facts that “allow[] the court to draw the

17 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

18 556 U.S. 662, 678 (2009) (citation omitted). While courts do not require “heightened fact

19 pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the

20 speculative level.” Twombly, 550 U.S. at 555, 570. There must be “more than a sheer possibility

21 that a defendant has acted unlawfully.” Id.

22

To decide if the plaintiff has stated a claim upon which relief can be granted, the court

23 accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the

24 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court

25 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of

26

27 2 There are two motions for leave to file amicus briefs. See Admin. Mots. for Leave (SF Dkt. No.

28

54; CA Dkt. No. 38). Because each motion complies with my prior Order Regarding Amicus Briefing, they are GRANTED.

9

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1 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

2 2008).

3

If the court dismisses a complaint, it “should grant leave to amend even if no request to

4 amend the pleading was made, unless it determines that the pleading could not possibly be cured

5 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making

6 this determination, the court should consider factors such as “the presence or absence of undue

7 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments,

8 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport

9 Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

10 II. MOTIONS FOR SUMMARY JUDGMENT

11

A party is entitled to summary judgment where it “shows that there is no genuine dispute

12 as to any material fact and [it] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

13 To prevail, a party moving for summary judgment must show the lack of a genuine issue of

14 material fact with respect to an essential element of the non-moving party’s claim, or to a defense

15 on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v.

16 Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts

17 to the party opposing summary judgment to identify “specific facts showing there is a genuine

18 issue for trial.” Id. The party opposing summary judgment must then present affirmative

19 evidence from which a jury could return a verdict in that party’s favor. Anderson v. Liberty

20 Lobby, 477 U.S. 242, 257 (1986).

21

On summary judgment, the Court draws all reasonable factual inferences in favor of the

22 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility

23 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

24 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony

25 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See

26 Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

27

28 10

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1

DISCUSSION

2 I. 3

BYRNE JAG CONDITIONS RESEMBLING THE 2017 CONDITIONS As an initial matter, the parties have agreed to incorporate by reference arguments and

4 supporting documents that they presented in the related 2017 Byrne JAG litigation to preserve

5 their arguments for appeal. See Minute Order (SF Dkt. No. 25; CA Dkt. No. 23); City & Cty. of

6 San Francisco, 349 F. Supp. 3d 924. There is no dispute that certain challenged conditions in the

7 fiscal year 2018 Byrne JAG Program are functionally the same as the notice, access, and Section

8 1373 certification conditions in the fiscal year 2017 Byrne JAG program at issue in the previous

9 related litigation. See SF RJN Ex. B at 36–37, 43 (stating the conditions); Ex. C at 3–4

10 (summarizing conditions, including “interview” and “custody” conditions on fiscal year 2018

11 Byrne JAG requirements resembling the notice and access conditions); City of Los Angeles, No.

12 18-cv-7347 (C.D. Cal. Feb. 15, 2019)(“the substance and effect of the conditions remains the

13 same” even after minor changes were made from 2017), Joint Supp. RJN, Ex. A at 5. Even

14 though the conditions remain in the 2018 Solicitation, the parties also do not dispute that the DOJ

15 is not enforcing them—at least while the matter is pending in the Ninth Circuit.

16

As the notice, access, and Section 1373/1644 certification conditions remain essentially the

17 same, my conclusions on those conditions still hold and I incorporate it by reference. The 2018

18 notice, access, and Section 1373/1644 certification conditions “violate the separation of powers;

19 Section 1373 is unconstitutional; the Attorney General exceeds the Spending Power in violation of

20 the United States Constitution” by imposing the Section 1373/1644 certification condition and

21 access and notice conditions; and “the challenged conditions are arbitrary and capricious.” City &

22 Cty. of San Francisco, 349 F. Supp. 3d at 934.

23

The remaining analysis in this Order focuses on the nondisclosure and information

24 conditions, the challenged conditions in the 2018 Byrne JAG award and Solicitation that were not

25 present in 2017.

26 II. THE SEPARATION OF POWERS

27

The DOJ argues that the nondisclosure and information conditions are authorized by three

28 statutory provisions that are permissible under the separation of powers. Specifically, it cites 11

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1 34 U.S.C. § 10153(a)(5)(D) and 34 U.S.C. §§ 10102(a)(2) and (a)(6), asserts that the authority

2 applies to the Byrne JAG program, and contends that the statutes exhibit congressional intent to

3 allow the Assistant Attorney General (“AAG”) of the Office of Justice Programs to exercise

4 discretion over formula grants.

5

Congress may, consistent with the separation of powers, delegate certain authority to spend

6 money to the Executive Branch. See Clinton v. City of N.Y., 524 U.S. 417, 488 (1998) (“Congress

7 has frequently delegated the President the authority to spend, or not to spend, particular sums of

8 money.”) (Breyer, J. dissenting). The Constitution gives an “unmistakable expression of a

9 determination that legislation by the national Congress be a step-by-step, deliberate and

10 deliberative process.” I.N.S. v. Chadha, 462 U.S. 919, 959 (1983).

11

Sections 10102(a)(2) and (6) state:

12

The Assistant Attorney General shall… (2) maintain liaison with...State

13

governments in matters relating to criminal justice; [and]… (6) exercise such other

powers and functions as may be vested in the Assistant Attorney General pursuant

14

to this chapter or by delegation of the Attorney General, including placing special

conditions on all grants, and determining priority purposes for formula grants.

15

16

34 U.S.C. § 10102.

17 Section 10153 reads in part:

18

(a) To request a grant under this part, the chief executive officer of a State or unit

19

of local government shall submit an application to the Attorney General within 120 days after the date on which funds to carry out this part are appropriated for a fiscal

20

year, in such form as the Attorney General may require.

…

21

(5) 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,

22

if qualified under regulations promulgated by the Attorney General), that

23

…

(D) the applicant will comply with all provisions of this part and all other applicable

24

Federal laws.

25

34 U.S.C. § 10153.

26 None of these statutory authorities grants the DOJ power to impose the fiscal year 2018 Byrne

27 JAG challenged conditions, as discussed further below.

28 12

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A. Section 10102 Does Not Grant Authority to Impose the Fiscal Year 2018 Byrne

1

JAG Challenged Conditions

2

The DOJ relies on Section 10102 for independent authority to impose the nondisclosure

3 and information conditions. It makes similar arguments in favor of the new fiscal year 2018

4 conditions that it made in the litigation over the 2017 conditions. In particular, it contends that

5 Section 10102(a)(6) grants it authority because the amendment of the Reauthorization Act,

6 creating the Byrne JAG Program in 2006 inserted “including placing special conditions on all

7 grants, and determining priority purposes for formula grants.” Pub. L. No. 109-162, § 1152(b),

8 119 Stat. at 3113; 34 U.S.C. § 10102(a)(6). The DOJ contends that giving the amendment no

9 practical effect would contravene the “well-known canon of statutory construction that, in general,

10 a statute should not be construed so as to render a word or clause inoperative.” Bell v. Reno, 218

11 F.3d 86, 91 (2d Cir. 2000); see, e.g., Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1022 (9th

12 Cir. 2014) (“When Congress acts to amend a statute, we presume it intends its amendment to have

13 real and substantial effect.”) (citation omitted).

14

The DOJ noted its disagreement with my prior Order in the related litigation, but has not

15 shown why the legal reasoning concerning the fiscal year 2017 conditions does not apply with

16 equal force in 2018. In City of Chicago v. Sessions, 888 F.3d 272, 284–85 (7th Cir. 2018), and

17 City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 616–17 (E.D. Pa. 2017), the courts found

18 that the DOJ’s interpretation of Section 10102(a)(6) was contrary to the plain meaning of the

19 statute. I agreed with City of Chicago and City of Philadelphia in the prior related litigation. See

20 City & Cty. of San Francisco, 349 F. Supp. 3d at 947–48. Since then, the Third Circuit and the

21 Hon. Egardo Ramos of the United States District Court for the Southern District of New York

22 have also rejected the DOJ’s interpretation of Section 10102(a)(6). See City of Philadelphia, 2019

23 WL 638931, at *8; States of New York, et al. v. Dep't of Justice, 343 F. Supp. 3d 213 (S.D.N.Y.

24 2018).

25

Section 10102(a)(6)’s language allowing the Attorney General to place “special conditions

26 on all grants” and to determine “priority purposes for formula grants” depends on the authority

27 “vested in the Assistant Attorney General pursuant to this chapter…” 34 U.S.C. § 10102. As I

28 found in the related litigation, “[n]o portion of the same chapter authorizes the conditions

13

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1 explicitly,” the Attorney General does not have the power to impose the conditions independent of

2 Congress, and the Byrne JAG statute does not reference Section 10102. City & Cty. of San

3 Francisco, 349 F. Supp. 3d at 948.

4

Section 10102(a)(6)’s statutory structure does not support the DOJ’s interpretation of its

5 broad independent authority either. As the court discussed in City of Chicago, 888 F.3d at 285,

6 the final “catch-all provision at the end of a list of explicit powers would be an odd place indeed to

7 put a sweeping power to impose any conditions on any grants…” This is still true.

8

1. The duty to maintain liaison under Section 10102(a)(2)

9

Related to the power to place “special conditions,” however, the DOJ relies on a provision

10 stated earlier in the list of its “Duties and Functions of the Assistant Attorney General.” 34 U.S.C.

11 § 10102. The DOJ asserts that under Section 10102(a)(2), the AAG’s duty to “maintain liaison”

12 with California and San Francisco in matters related to criminal justice authorizes it to impose the 13 nondisclosure and information conditions.3 It contends that the nondisclosure condition is

14 justified by the need to keep law enforcement officers safe and their operations confidential while

15 working with state and local law enforcement, and that the information condition was intended to

16 clarify that applicants can abide by other conditions and maintain liaison with DOJ. It interprets

17 Section 10102(a)(2) as permitting it to (i) protect the confidentiality of federal law enforcement

18 information provided to state and local agencies, and (ii) assess the ability of those agencies to

19 engage in cooperation by gathering information about their laws and policies. See Eringer v.

20 Principality of Monaco, No. CV 10-1803 GAF (EX), 2011 WL 13134271, at *5 (C.D. Cal. Aug.

21 23, 2011), aff’d, 533 F. App’x 703 (9th Cir. 2013) (stating that plaintiff’s duty to “maintain

22 liaison” between two agencies entailed “regularly shar[ing] sensitive intelligence information.”).

23

An agency lacks power to act “unless and until Congress confers power upon it.” La. Pub.

24 Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). In the grant context, the power to place

25 conditions on grants depends on “whether Congress conferred authority on the Attorney General

26

27

3 Previously, the DOJ relied on Section 10102(a)(2) to argue that its 2017 conditions comport with the Spending Power and were related to the criminal justice purposes of the Byrne JAG Program.

28

I found that the challenged conditions, premised on the authority of Section 10102(a)(2), were unrelated. See City & Cty. of San Francisco, 349 F. Supp. 3d at 958–59.

14

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1 to impose them.” City of Chicago v. Sessions, 264 F. Supp. 3d 933, 940 (N.D. Ill. 2017). The

2 DOJ puts far more weight on “maintain liaison” than it can hold.

3

As discussed above, the plain text of Section 10102 grants the AAG “power to place

4 special conditions on grants only to the extent that such power has been vested in him or her

5 ‘pursuant to this chapter or by delegation of the Attorney General.” City of Philadelphia, 2019 6 WL 638931, at *7.4 The text of the “maintain liaison” authority on which the DOJ relies states

7 only that “[t]he Assistant Attorney General shall… (2) maintain liaison with...State governments

8 in matters relating to criminal justice.” 34 U.S.C. § 10102. This provision does not support a

9 broad authority to place the challenged conditions on Byrne JAG grantees. California and San

10 Francisco argue that this statutory provision was not intended as empowering the DOJ to impose

11 conditions, and instead was an instruction for the AAG to maintain bilateral communications or

12 act as a point of contact with state and local governments.

13

The DOJ does not identify where in the statutory text Congress expressed its intent for

14 maintaining liaison to amount to discretionary authority for creating conditions on state and local

15 governments in the Byrne JAG Program. Instead, it merely defines “liaison” itself. See DOJ

16 Oppo./Reply at 3 (citing Liaison, Merriam-Webster, https://www.merriam-

17 webster.com/dictionary/liaison (last visited Jan. 15, 2019) (defining liaison as “a close bond or

18 connection” or “a person who establishes and maintains communication for mutual understanding

19 and cooperation.”). It is too great a leap to conclude that because Congress imposed an obligation

20 on the DOJ to “maintain liaison,” or maintain a close connection to “Federal and State

21 governments in matters relating to criminal justice,” that it was intending to grant the DOJ broad

22 authority to impose the challenged conditions over states and local governments receiving funds.

23 34 U.S.C. § 10102(a)(2).

24

The structure of Section 10102 does not support the contention that “maintain liaison” in

25

26

4 This is consistent with the findings of every other court to hear this argument on Section 10102(a)(6). See, e.g., City of Chicago, 888 F.3d at 285 (finding the term “including” limited

27

authority to placing conditions vested in the Attorney General in the same chapter or delegated to him or her elsewhere); States of New York et al., 343 F. Supp. 3d at 228 (same); City & Cty. of San

28 Francisco, 349 F. Supp. 3d at 948 (same).

15

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1 Section 10102(a)(2) provides more than a ministerial duty on the Attorney General to maintain

2 communication with other Federal and State agencies. As the Third Circuit recently stated, “a

3 word is known by the company it keeps.” City of Philadelphia, 2019 WL 638931, at *8. The six

4 powers of the AAG in this section “all deal with the AAG’s power to disseminate criminal justice

5 information and coordinate with various agencies and officials.” Id. The Seventh Circuit agrees

6 with this interpretation. See City of Chicago, 888 F.3d at 285 (“The preceding ‘powers’ in the list,

7 §§ 10102(a)(1)–(5), address the communication and coordination duties of the Assistant Attorney

8 General.”).

9

On the other hand, the nondisclosure condition is more than ministerial. It requires

10 grantees to internally enforce against “direct or indirect attempts” to disclose information, and it

11 empowers the AAG to be the sole arbiter of what it considers to be a violation of the condition.

12

Further, there is no indication that the “maintain liaison” duty in “matters relating to

13 criminal justice” conferred a power to place conditions pertaining to immigration enforcement at

14 all. Id. The information condition is squarely focused on immigration enforcement, and at most

15 superficially touches on the liaison relationship. The information condition may help determine if

16 grantees can maintain liaison, as the DOJ argued at the hearing, but it was also intended to confirm

17 compliance with conditions like the Section 1373 certification condition.

18

The nondisclosure condition raises a closer question. The DOJ asserts that the condition is

19 concerned with protecting confidential federal law enforcement information and the liaison

20 relationship between the federal and state or local partners. A narrow and unambiguous condition

21 requiring jurisdictions to promise not to disclose imminent confidential federal criminal law

22 enforcement operations in order to receive a law enforcement grant would be reasonable: the risk

23 of harm to law enforcement officers and civilians would be significantly increased if lack of trust

24 between federal and local partners caused the federal government not to disclose planned

25 operations to their local counterparts. That would interfere with the ability to “maintain liaison.”

26 California and San Francisco agreed at the hearing that the desire to maintain confidentiality is

27 reasonable and that they would not intentionally publicize confidential information concerning

28 impending operations.

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1

That said, the scope of the nondisclosure condition exceeds the narrow characterization

2 offered by the DOJ, and it exceeds the ministerial duty to “maintain liaison.” The duty to

3 “maintain liaison…in matters relating to criminal justice,” however expansively one reads it, does

4 not venture into immigration enforcement more broadly. Yet the nondisclosure condition focuses

5 not only on preventing disclosures related to harboring “fugitives of justice” but applies to “any

6 alien.” Further, it prohibits a “direct or indirect attempt” to harbor those individuals, as

7 determined by the AAG. This language seeks the broadest coverage possible by its use of the

8 term “indirect attempt,” which has no boundary. It would be interpreted by the AAG. Given the

9 current tension between federal and local authorities, it does not require much imagination to think

10 that the AAG today might well consider many parts of the “sanctuary” laws as indirect attempts to

11 harbor “aliens,” despite rulings of courts around the country that have rejected DOJ’s

12 interpretations of its authority and the constitutionality of Section 1373.

13

The DOJ’s interest in immigration enforcement is distinct from the criminal justice focus

14 of the Byrne JAG Program. City & Cty. of San Francisco, 349 F. Supp. 3d at 946 (“Congress

15 repealed the only requirement related to immigration that existed before, and it has failed to amend

16 the Byrne JAG statute to add similar conditions since.”). Congress knows how to grant broad

17 discretionary authority but did not do so here. See 34 U.S.C. § 10446(e)(3) (Grants to Combat

18 Violent Crime Against Women) (“In disbursing grants under this subchapter, the Attorney General

19 may impose reasonable conditions on grant awards....”). There is no authority in Section 10102

20 for the DOJ to impose the fiscal year 2018 Byrne JAG nondisclosure or information conditions

21 based on its authority to place “special conditions” on grants or its duty to “maintain liaison” in

22 criminal justice matters.

23

B. Section 10153(a) Does Not Grant Authority to Impose the Fiscal Year 2018

Byrne JAG Challenged Conditions

24

The DOJ contends that Section 10153(a), allowing the AAG to dictate the “form” of

25

applications, and Section 10153(a)(5)(D), allowing it to require compliance with all “applicable

26

Federal laws” in connection with the Byrne JAG awards, provide ample support for the

27

nondisclosure and information conditions. The nondisclosure condition references statutes like 8

28

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1 U.S.C. § 1324(a), while the information condition references compliance with Section 1373. See

2 DOJ Mot. for Partial Dismissal or Summ. J. at 7–8.5

3

California argues that the conditions violate the Tenth Amendment for three reasons: (i)

4 the statutory structure of JAG limits the “applicable Federal laws” to those related to the grant

5 application; (ii) laws identified in the fiscal year 2018 certifications do not apply to California or

6 its subdivisions at all; and (iii) even if Sections 1226, 1231, 1357, or 1366 were “applicable

7 Federal laws,” the DOJ lacks authority to dictate what the state can do without violating

8 anticommandeering doctrine. San Francisco’s Tenth Amendment arguments primarily concern

9 Section 1373, which I have already addressed. See supra Sec. I.

10

In the Byrne JAG Program, Congress has pre-determined who the eligible recipients are

11 and how much money they are to receive, but the operative statute leaves to the Attorney General

12 certain discretion to carry out parts of the program. For example, the Byrne JAG statute grants

13 authority to waive the “program assessment component” requirement, 34 U.S.C. § 10152(c)(1)–

14 (2), to add requirements to assure that the applicant report certain programmatic and financial

15 records “as the Attorney General may reasonably require,” id. at § 10153(a)(4), and to require a

16 certification that “there has been appropriate coordination with affected agencies.” Id. at §

17 10153(a)(5).

18

In the related litigation, I addressed whether Section 1373 (if it was constitutional) would

19 be an applicable law authorized by Section 10153(a)(5)(D). Starting with the text, I found that the

20 term “applicable” could hold both meanings proposed by the parties and agreed with the City of

21 Philadelphia and City of Chicago decisions that found the plain meaning of the text in the statute a

22 “close call.” City of Philadelphia, 280 F. Supp. 3d at 619; City of Chicago, 264 F. Supp. 3d at

23 944. The text alone did not indicate an answer to the scope of authority included in requiring

24 compliance with applicable federal laws.

25

Turning to the statutory structure, I found that the “applicable laws” clause – located in the

26

27 5 The fiscal year 2018 JAG Solicitation requires other certifications of compliance with Section

28

1373, Section 1644, Section 1324, and a certification to not “impede” federal officials’ authority related to 8 U.S.C. §§ 1226, 1231, 1357, and 1366. See AR-1268.

18

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1 last of four residual clauses within a proviso concerning the grant application – confined

2 “applicable” to the subject matter of the principal clause. See Republic of Iraq v. Beaty, 556 U.S.

3 848, 857–58 (2009). Therefore, “the phrase ‘all other applicable Federal laws’ refers to the

4 preceding clause requiring grant applications to include a certification ‘in a form acceptable to the

5 Attorney General.’” City & Cty. of San Francisco, 349 F. Supp. 3d at 955 (citing 34 U.S.C. § 6 10153(a)(5) (emphasis added)). I reaffirm that view here.6

7

The DOJ’s references to federal laws in the fiscal year 2018 certifications, to the extent

8 they are asserted as applicable at all, are not related to the grant application or its form. For

9 “applicable” laws like Section 1373 and Section 1644, the DOJ preserves its disagreements for

10 appeal. However, the DOJ does not argue against California’s position that the other laws

11 referenced in the conditions are not applicable to the State at all. See DOJ Mot. at 19 (“the FY

12 2018 Byrne JAG conditions do not require California to comply with the other provisions – that is,

13 8 U.S.C. §§ 1226, 1231, 1357, and 1366.”). If the federal laws mentioned in the new 2018

14 certifications are not “applicable Federal laws,” their respective conditions are not authorized by

15 Section 10153(a).

16

California also argues that the anticommandeering doctrine would bar the challenged

17 conditions, even if Sections 1226, 1231, 1257, and 1366 were applicable laws. See Murphy v.

18 NCAA, 138 S. Ct. 1461, 1478 (2018) (finding prohibitions that “unequivocally dictate[] what a

19 state legislature may and may not do” violate the anti-commandeering rule as much as affirmative

20 commands.). I need not decide this now. The DOJ does not contend those laws, referenced in its

21 conditions, are “applicable” to California or San Francisco in the first place.

22

After reviewing the asserted authority of Section 10102 and Section 10153(a), I find that

23 Congress has not granted the DOJ the power to impose the nondisclosure or information

24

25

6 The Third Circuit also held that Section 1373 was not an applicable law for purposes of the Byrne JAG program. See City of Philadelphia, 2019 WL 638931, at *9 (finding “it would be

26

reasonable to view ‘all other applicable Federal laws’ to refer specifically to laws that apply to operations relating to the grant, not to require the City to certify compliance with every single law

27

that might apply to it.”). The court also stated that 34 U.S.C. § 10228(a), which prohibits the DOJ from “exercis[ing] any direction, supervision, or control over any police force or any other

28

criminal justice agency,” could be a statutory limit on what is “applicable” under Section 10153(a). Id. at *10.

19

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1 conditions. Accordingly, imposition of the challenged conditions is ultra vires and violates the

2 separation of powers.

3 III. THE SPENDING POWER

4

Plaintiffs raise claims for relief premised on a violation of the Spending Clause of Article

5 I, Section VIII of the United States Constitution, assuming for the sake of argument that Congress

6 delegated to the DOJ authority to impose the challenged conditions on Byrne JAG funding. See

7 SF FAC at 26; CA FAC at 35. Congress “may offer funds to the States, and may condition those

8 offers on compliance with specified conditions.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

9 519, 537 (2012). However, if Congress intended to impose conditions on spending they must be

10 “reasonably related to the purpose of the federal program.” S. Dakota v. Dole, 483 U.S. 203, 207

11 (1987) (O’Connor, J., dissenting).

12

Additionally, if Congress intended “to impose a condition on the grant of federal moneys,

13 it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

14 (1981). Unambiguous conditions enable “States to exercise their choice knowingly, cognizant of

15 the consequences of their participation.” Id. Courts thus view statutes “from the perspective of a

16 state official who is engaged in the process of deciding whether the State should accept [the] funds

17 and the obligations that go with those funds.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

18 548 U.S. 291, 296 (2006).

19

A. Relatedness

20

The Byrne JAG Program is a formula grant program for certain criminal justice purposes.

21 34 U.S.C. § 10152(a)(1); see also City & Cty. of San Francisco, 349 F. Supp. 3d at 959

22 (summarizing the criminal justice purposes of the Byrne JAG Program more thoroughly). The

23 DOJ moves for dismissal or summary judgment, insisting that the nondisclosure and information

24 conditions are sufficiently related to the federal interests in the Byrne JAG Program. See New

25 York v. United States, 505 U.S. 144, 167 (1992) (stating that only “some relationship” is necessary

26 between spending conditions and “the purpose of the federal spending.”). Specifically, the DOJ

27 asserts that the nondisclosure and information conditions insure that any funded program does not

28 “thwart the federal government’s exercise of its ability to remove aliens not lawfully present in the 20

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1 United States or removable due to a criminal conviction.” DOJ Mot. at 14:17–19.

2

San Francisco contrasts the immigration enforcement purposes of the challenged fiscal

3 year 2018 conditions with Congress’s purposes in creating the Byrne JAG Program—to support

4 states and local law enforcement in eight permissible program areas related to “combat[ting] the

5 most urgent public safety problems in their own communities.” City & Cty. of San Francisco, 349

6 F. Supp. 3d at 959 (quoting 151 Cong. Rec. 25, 919 (2005)). I have already addressed why

7 immigration enforcement conditions like the access and notice conditions were not sufficiently

8 related to criminal justice to meet the relatedness requirement. Id. (“immigration law does not

9 impact local law enforcement’s administration and enforcement efforts in the criminal justice

10 system.”); see also City of Philadelphia, 280 F. Supp. 3d at 642, 642 (“Immigration law has

11 nothing to do with the enforcement of local criminal laws.”).

12

The same is true with the information condition, which appears to be included at least in

13 part “to assess the accuracy” of the applicant’s certifying compliance with Section 1373. DOJ

14 Mot. at 8. Section 1373 is unrelated to Byrne JAG for all the reasons discussed in my prior Order.

15 See City & Cty. of San Francisco, 349 F. Supp. 3d at 961 (“Requiring a certification of

16 compliance with an inapplicable law would seem to exemplify un-relatedness.”). Similarly,

17 requiring the underlying information from grantees to assess their compliance with an inapplicable

18 law like Section 1373 is equally unrelated. The immigration enforcement interests furthered by

19 the information condition do not sufficiently relate to the federal interests in criminal justice of the

20 Byrne JAG Program.

21

However, my prior analysis is not necessarily dispositive of the nondisclosure condition, a

22 part of which could be reasonably related to Byrne JAG’s purposes. See Dole, 483 U.S. at 213

23 (“Congress may condition grants under the spending power only in ways reasonably related to the

24 purpose of the federal program.”). The crux of DOJ’s argument relies on an incident where the

25 Oakland’s mayor informed residents of an impending federal immigration operation on social

26 media, allegedly compromising the operation and law enforcement safety.7 The nondisclosure

27

28

7 Plaintiffs dispute the underlying facts and whether this incident would apply to the nondisclosure condition. The evidence of what happened is not before me, and I take no position on it.

21

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1 condition requires California and San Francisco to certify that they will not disclose confidential

2 federal law enforcement information that relates to harboring both criminals and non-criminal

3 immigrants. See DOJ RJN Ex. D ¶ 44.

4

Unlike the 2017 notice and access conditions, the nondisclosure condition’s focus on

5 protecting confidential federal law enforcement information expressly includes criminal and

6 immigration enforcement. While immigration enforcement conditions had no relationship with

7 any of the eight permissible Byrne JAG funded program areas, protecting the communication of

8 confidential law enforcement information in exigent circumstances overlaps with some focuses of

9 the program. See, e.g., 34 U.S.C. § 10152(a)(1)(A) (“law enforcement program”); (E) (“drug

10 treatment and [drug] enforcement programs”). Accordingly, protecting confidential federal law

11 enforcement information has some relationship with plaintiffs’ Byrne JAG funded programs. For

12 example, California’s Byrne JAG funding has in the past gone towards task forces on criminal

13 drug enforcement, violent crime, and gang activities—all of which would share an interest in

14 maintaining the confidentiality of federal law enforcement information. See Joll Decl. ¶ 15. San

15 Francisco’s funding appears to be more services-oriented, but it has also used funds for law

16 enforcement programs “designed to reduce criminal behavior and improve public safety…” SF

17 Mot. Summ. J. at 4; Chyi Decl. ¶¶ 10–11, 17 (discussing programs like Young Adult Court, Law

18 Enforcement Assisted Diversion, Focused Drug Deterrence, and Drug Court Prosecution aimed at

19 reducing recidivism).

20

That said, as California and San Francisco argue, the nondisclosure condition does not

21 make a distinction between undocumented immigrants subject to potential criminal law

22 enforcement and those who are not, even though “many immigration violations do not involve

23 criminal law and are only violations of civil penalties.” City & Cty. of San Francisco, 349 F.

24 Supp. 3d at 960; see also 8 U.S.C. §§ 1182(a)(6)(A) & (9)(B), 1202(g), 1227(a)(1)(B). The

25 nondisclosure condition is somewhat related to the federal interests in criminal justice, but for the

26 reasons described below it does not pass muster because of its ambiguity.

27

B. Ambiguity

28

California and San Francisco challenge the nondisclosure and information conditions as

22

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1 ambiguous. I focus again on the nondisclosure condition because the analysis of the information

2 condition is little different than the Section 1373 certification condition in the 2017 litigation.

3 California argues that (i) the nondisclosure condition’s authority under Section 10102(a)(2) is

4 even more ambiguous than Section 10102(a)(6) or Section 10152(a)(5)(D), which I also found to

5 be ambiguous; and (ii) the DOJ’s own explanations of the nondisclosure condition does not enable

6 grantees to knowingly participate “cognizant of the consequences.” DOJ Ex. D ¶ 44. San

7 Francisco adds that both conditions “cannot have been unambiguously authorized by Congress”

8 because they were never statutorily authorized by Congress. City of Philadelphia, 280 F. Supp. 3d

9 at 646.

10

The parties dispute whether the nondisclosure condition is clear by its text. The DOJ

11 points to the Rules of Construction that define terms like “alien,” “federal law enforcement

12 information,” and “public disclosure” for purposes of the nondisclosure condition. Each award

13 document also directs applicants to ask the Office of Justice Programs questions on the meaning or

14 scope of the conditions if anything is not clear. See DOJ RJN, Ex. C ¶¶ 42–46. The DOJ relies on

15 cases from different circuits that each hold Congress “need not specifically identify and proscribe

16 in advance every conceivable state action that would be improper.” Benning v. Georgia, 391 F.3d

17 1299, 1306 (11th Cir. 2004); see also Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003)

18 (finding that the nature of a grant condition can be indeterminate as long as its existence is clear).

19

DOJ’s argument fails. For one thing, the nondisclosure condition suffers from the same

20 problem identified by the court in City of Philadelphia: if there is no authority conferred by

21 Section 10102(a)(2) enabling the DOJ’s nondisclosure condition, then it cannot have been

22 unambiguously authorized. City of Philadelphia, 280 F. Supp. 3d at 646 (finding the conditions

23 “[c]annot have been unambiguously authorized by Congress if they were never statutorily

24 authorized.”). For another, the nondisclosure condition flunks the operative test of whether it

25 allows grantees to participate in the Byrne JAG Program “knowingly,” and “cognizant of the

26 consequences.” Pennhurst State Sch. & Hosp., 451 U.S. 1, 17 (1981). The condition goes well

27 beyond the DOJ’s stated purposes. It is one thing to protect against disclosures of the kind

28 allegedly made by Oakland’s mayor. AR-01038–39. But it is quite another to require grantees to

23

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1 comply with the unexplained and unbounded discretion of the AAG to avoid “indirect attempts” to

2 disclose information.

3

California posits that it is unclear whether the condition prevents it from participation

4 because of its TRUTH Act and Model Policies for K-12 schools. The TRUTH Act was enacted to

5 “promote public safety” and transparency by subjecting local law enforcement who assist federal

6 immigration enforcement “to meaningful oversight.” 2016 Cal. Legis. Serv. Ch. 768 § 2(h), (i).

7 The TRUTH Act classifies certain ICE records as public records under the California Public

8 Records Act, and it requires that jurisdictions providing ICE with access to detention facilities

9 hold community forums to inform the public about ICE access. Cal. Gov’t Code § 7283.1(d). The

10 State has found these forums helpful to “promoting accountability between law enforcement and

11 the community.” Goldstein Decl. ¶ 11.

12

California’s K-12 Model Policies for responding to immigration enforcement were

13 published in Assembly Bill 699, Cal. Ed. Code § 234.7(f)(1), to support students’ “inalienable

14 right to attend campuses which are safe, secure and peaceful.” Cal. Const. art. I § 28(f)(1). The

15 K-12 Model Policies require school employees to provide students and their families “with

16 appropriate notice and a description of the immigration officer’s request,” along with any

17 documents provided by the law enforcement officer, if there is a request for immigration

18 enforcement information. CA RJN Ex. D at 20. School employees are also required to obtain

19 consent from the student’s parent or guardian before allowing them to be interviewed or searched 20 for immigration enforcement purposes. CA RJN Ex. D at 31.8

21

At the hearing, the DOJ disclaimed any intent to reach the TRUTH Act’s public forum

22 requirements or the K-12 model policies by enforcement of the nondisclosure condition. Yet in its

23 APA argument, the DOJ contended that California Labor Code § 90.2(a), requiring employers to

24

25 8 Amicus Los Angeles Unified School District joins California in arguing that AB 699 and the K-

26

12 Model Policies restrict schools from sharing information for immigration purposes potentially prohibited by the nondisclosure condition. See Amicus Brief (CA Dkt. No. 38). According to

27

LAUSD, the State Legislature intended to support the view that “[c]hildren should be able to learn without fear and disruptions.” S. Comm. on Education, analysis of AB 699, 2017- 2018 Reg.

28

Sess. (passed as amended Sept. 15, 2017). It believes the nondisclosure condition is antithetical to the interests and policies of the State embodied by AB 699 and its K-12 Model Policies.

24

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1 notify employees of records inspections by federal immigration authorities, was indicative of a

2 larger problem in California in which undocumented employees are given an opportunity to leave

3 before immigration officers detect them. Similar notice requirements are at issue with the K-12

4 Model Policies. California also notes that the federal government’s own statements about

5 California laws increase the ambiguity of its Byrne JAG application. See CA RJN Exs. E–G

6 (citing the Acting ICE Director’s statements suggesting that California laws violate the

7 nondisclosure requirement).

8

The DOJ argues that intent is required to make an attempt to disclose information, even an

9 indirect one. Perhaps so, but this does not clarify what conduct is proscribed; it merely leaves the

10 AAG with authority to determine a violation “without regard to whether such disclosure would

11 constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C.

12 1324(a).” Id.

13

Even if Congress provided the DOJ with authority to impose the nondisclosure condition

14 within the duty of Section 10102(a)(2) to “maintain liaison” or other laws (which I found was not

15 the case), the breadth of the condition’s scope render it ambiguous. It is not an answer to refer

16 questions to the Office of Justice Programs—the scope must be clear from the condition so that

17 prospective Byrne JAG applicants may make an informed choice, cognizant of the consequences.

18 IV. ARBITRARY AND CAPRICIOUS CLAIM

19

The DOJ moves to dismiss or for summary judgment on California’s arbitrary and

20 capricious APA claim. It asserts that the claim fails because its reasons for imposing the condition

21 and requirements “were entirely rational.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,

22 517 (2009). The DOJ insists that it was reasonable for the Office of Justice Programs to deny

23 federal law enforcement funding to a jurisdiction that publicly discloses sensitive information in

24 an attempt to harbor unlawful immigrants or fugitives from detection, or for refusing to provide

25 information about its laws or policies on communicating with federal authorities.

26

In APA claims asserting that agency action was “arbitrary, capricious, an abuse of

27 discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), the defendant agency

28 is required to “examine the relevant data and articulate a satisfactory explanation” for their 25

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 26 of 31

United States District Court Northern District of California

1 actions. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

2 (1983). Actions with a “rational connection between the facts found and the choice made” are

3 valid. Id. In contrast, agency action should be overturned if the agency relied on factors Congress

4 did not intend for it to consider, failed to consider important aspects of the problem, or its decision

5 was counter to the evidence before it. Id. Thus, the reviewing court should “not supply a

6 reasoned basis for the agency’s action that the agency itself has not given,” and should “uphold a

7 decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman

8 Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974) (internal citation

9 omitted).

10

The complete administrative record includes 1867 pages of documents. See Admin.

11 Record (SF Dkt. No. 26; CA Dkt. No. 28). The DOJ argues its agency action for the new

12 conditions was reasonable given an Office of Inspector General Memorandum regarding potential

13 violations of Section 1373 (AR00366), emails to Byrne JAG grantees and state administering

14 agencies (AR00392–97), the Backgrounder on Grant Requirements (AR00993), and social media

15 posts from Oakland Mayor Libby Schaff (AR01038–39).

16

The 2016 OIG Memorandum and Backgrounder on Grant Requirements are the same

17 documents that the DOJ unsuccessfully relied upon in the prior related litigation, and in City of

18 Philadelphia, 280 F. Supp. 3d at 619–625. I found that the OIG Memorandum could not be relied

19 on for establishing a “rational connection between the facts found and the choice made” because

20 the choice to impose a Section 1373 condition was made before the Memorandum was issued, and

21 the document did not purport to offer any post-hoc rationalizations for the decision. State Farm,

22 463 U.S. at 43. To rely on it would be circular as “a report concluding that many jurisdictions are

23 not complying with Section 1373 does not justify imposing a condition requiring those

24 jurisdictions to certify compliance.” City of Philadelphia, 280 F. Supp. 3d at 624.

25

I have discussed why the Backgrounder is insufficient in two prior Orders. See City & Cty.

26 of San Francisco, 349 F. Supp. 3d at 964; see also State ex rel. Becerra v. Sessions, 284 F. Supp.

27 3d 1015, 1032 (N.D. Cal. 2018). To summarize the problem again, “[t]here is not a clear

28 link…between localities keeping release dates or contact information confidential and more

26

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 27 of 31

United States District Court Northern District of California

1 dangerous or less safe communities.” City & Cty. of San Francisco, 349 F. Supp. 3d at 964. This

2 record concerns the fiscal year 2017 conditions, so it also lacks any explanation of the new

3 nondisclosure condition.

4

Next, the DOJ cites two emails to Byrne JAG grantees and state agencies for the first time

5 in this court and contends that they show the Section 1373 certification condition was put in place

6 to protect the exchange of information between federal, state, and local law enforcement. AR-

7 00392–97. Contrary to this claim, the emails merely provide “updated guidance” on Section 1373.

8 Id. There is no portion of the emails that “articulate a satisfactory explanation for [the DOJ’s]

9 action.” State Farm, 463 U.S. at 43.

10

Finally, the DOJ relies on social media posts from the Oakland’s mayor to justify its

11 imposition of fiscal year 2018 conditions. AR-01038–39. The posts are a new addition to the

12 administrative record. They disclose that ICE “is preparing to conduct an operation in the Bay

13 Area” within the next 24 hours and provide a link for residents to click-through to understand their

14 legal rights in the event of being detained. Id.

15

California asserts that there is no evidence that one disclosure is indicative of a larger

16 problem and that the nondisclosure condition is broader than what is necessary to address the

17 problem. I disagree with the first contention. If the facts are as DOJ suggests, it does not need to

18 wait for a larger number of disclosures of imminent law enforcement operations to justify acting.

19 Treating the nondisclosure condition as a response to Mayor Schaff’s disclosure at least begins to

20 approach what the Court in Bowman described as “a decision of less than ideal clarity [in which]

21 the agency’s path may reasonably be discerned.” Bowman Transp., 419 U.S. at 286.

22

At the same time, the social media screenshots by themselves fail to explain the DOJ’s

23 decision to impose a nondisclosure condition that has much broader scope and application than the

24 situation that purportedly inspired the condition. See State Farm, 463 U.S. at 50 (“It is well-

25 established that an agency’s action must be upheld, if at all, on the basis articulated by the agency

26 itself.”) (internal citation omitted). Ultimately there are still “no findings and no analysis” in the

27 administrative record “to justify the choice made” if the only document that supports a condition is

28 a screenshot of the posts themselves. See Burlington Truck Lines, Inc. v. United States, 371 U.S.

27

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 28 of 31

United States District Court Northern District of California

1 156, 167 (1962)(no support for remedy chosen by the Interstate Commerce Commission).

2

On this record the agency has not provided an articulated basis for the condition as drafted.

3 The DOJ’s justification and reliance on the social media posts without more, does not establish a

4 “product of reasoned decision making.” State Farm, 463 U.S. at 52. Although I can hypothesize

5 how a nondisclosure condition in a significantly narrower form could be a reasonable response,

6 there is a conspicuous lack of a record surrounding why the condition was imposed in its current

7 form, where it could be used wittingly or unwittingly as a Trojan horse for acts and interpretations

8 of the law that this court and others across the country have enjoined. Burlington Truck Lines, 371

9 U.S. 156, 168 (1962) (“courts may not accept appellate counsel’s post hoc rationalizations for

10 agency action.”). I cannot fill-in my own or counsel’s discretion for that of the agency.

11 Accordingly, I find that the challenged conditions are arbitrary and capricious under the APA.

12 V. 13

INJUNCTIVE RELIEF The parties raise a now familiar dispute over the scope of the injunctive relief that is

14 merited in this case. According to principles of equity, a permanent injunction is appropriate

15 when: (i) a plaintiff “suffered an irreparable injury;” (ii) available remedies at law are

16 “inadequate;” (iii) the “balance of hardships” between the parties supports an equitable remedy;

17 and (iv) public interest is “not disserved.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391

18 (2006). California and San Francisco are entitled to a permanent injunction in light of the finding

19 that the fiscal year 2018 challenged conditions violate the separation of powers.

20

The remaining question is whether injunctive relief should have nationwide scope.

21 Because the parties have stipulated to incorporating the arguments and supporting documents from

22 the 2017 Byrne JAG litigation, the same record that supported a permanent nationwide injunction

23 supports one here. Additionally, San Francisco and California provide evidence that the new

24 fiscal year 2018 conditions apply and cause harm to jurisdictions nationwide. See SF RJN Ex. B,

25 Chyi Decl. Ex. C (SF), Wright Decl. Ex. C (Somerville, Massachusetts); Nair Decl., Ex. 2

26 (Albuquerque, New Mexico). The conditions will continue to apply to jurisdictions without an

27 injunction. See Jerzyk Decl. (Central Falls, Rhode Island); Wright Decl. (Somerville,

28 Massachusetts); Reeve Decl. (Portland, Oregon); Springer Decl. (Denver, Colorado); Pittman 28

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 29 of 31

United States District Court Northern District of California

1 Decl. (Seattle, Washington); Segal Decl. (Minneapolis, Minnesota); Nair Decl. (Albuquerque,

2 New Mexico); Muhammad Decl. (Chicago, Illinois).9

3

The DOJ offers the three arguments against a nationwide injunction that it made in the

4 prior related litigation. First, it believes that plaintiffs lack standing to seek a nationwide

5 injunction. It asserts the plaintiffs’ “remedy must be limited to the inadequacy that produced

6 [their] injury in fact,” and therefore a nationwide injunction here would violate Article III

7 standing. See Gill v. Whitford, 138 S. Ct. 1916 (2018) (rejecting standing for a statewide

8 gerrymandering challenge because a plaintiff’s remedy must be limited to his injury). Second, it

9 restates the concern, of which I am mindful, that nationwide injunctions risk preventing “legal

10 questions from percolating through the federal courts, encouraging forum shopping, and making

11 every case a national emergency for the courts and for the Executive Branch.” Trump v. Hawaii,

12 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring). Finally, similar litigation is pending in

13 other jurisdictions. See City of Los Angeles v. Whitaker, No. 2:18-cv-07347-R-JC (C.D. Cal.);

14 City of Chicago v. Whitaker, No. 1:18-cv-06859 (N.D. Ill.); City of New York v. Whitaker, No.

15 1:18-cv-06474-ER (S.D.N.Y.); City of Providence v. Whitaker, No. CA-18-437-JJM-LDA

16 (D.R.I.).

17

Neither party offers convincing reasons for me to deviate from the prior Order in the

18 related 2017 litigation. The appropriateness of nationwide injunctive relief for the 2017 Byrne

19 JAG conditions applies equally in 2018. See City & Cty. of San Francisco, 349 F. Supp. 3d at 973

20 (granting but staying the nationwide injunction because the Ninth Circuit might disagree about the

21 constitutionality of Section 1373 and “because the laws and practices of each ‘sanctuary’

22 jurisdiction differ.”).

23

California and San Francisco have shown that Section 1373 is unconstitutional and that

24 there is a violation of the separation of powers, which supports nationwide relief. City & Cty. of

25

26

9 Amici 46 Counties, Cities, and Local Government Organizations further shed light on the benefits of the Byrne JAG Program, as well as the far-reaching consequences of the fiscal year

27

2018 challenged conditions. See Amicus Brief (SF Dkt. No. 54). They argue that a nationwide injunction is the only remedy for local governments that are faced with the precarious decision to

28

submit to the DOJ’s conditions or forego important funding for local programs that benefit their communities. Id. at 10–12.

29

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 30 of 31

United States District Court Northern District of California

1 San Francisco, 897 F.3d at 1232; see also Int'l Refugee Assistance Project v. Trump, 857 F.3d

2 554, 605 (4th Cir. 2017) (finding that relief limited to the parties in suit where there was a likely

3 constitutional violation “would not cure the constitutional deficiency, which would endure in all

4 [its] applications.”). As set forth above, the nondisclosure condition is defective for different

5 reasons. But those reasons are also applicable to jurisdictions throughout the country; no factual

6 differences would cause a different legal conclusion. Accordingly, I grant the injunction in favor

7 of plaintiffs but stay its nationwide scope.

8 VI. MANDAMUS RELIEF

9

California seeks mandamus relief to compel the DOJ to issue and disburse fiscal year 2018

10 Byrne JAG funds without the challenged conditions. CA FAC ¶ 138; Prayer for Relief ¶ 4. The

11 DOJ disputes the need for mandamus relief in a footnote, stating that it already issued fiscal year

12 2018 Byrne JAG awards to California and its subdivisions and has mooted this request. However,

13 the parties agreed to an extension on the deadline for accepting the awards until after I rule on the

14 dispositive motions at issue here. Sherman Decl., Ex. 7.

15

Consistent with the TRAC factors traditionally used to evaluate mandamus relief, I find

16 that the facts support mandamus relief for California. See Indep. Min. Co. v. Babbitt, 105 F.3d

17 502, 507 (9th Cir. 1997) (citing Telecommc'ns. Research & Action v. FCC (TRAC), 750 F.2d 70,

18 79–80 (9th Cir. 1984)).

19

(1) the time agencies take to make decisions must be governed by a rule of reason;

20

(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

21

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

22

at stake; (4) the court should consider the effect of expediting delayed action on

23

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

24

need not find any impropriety lurking behind agency lassitude in order to hold that

agency action is unreasonably delayed.

25

26 750 F.2d at 80 (citations and internal quotation marks omitted).

27

The Byrne JAG formula grant is an annual program; delay in disbursal impacts human

28 health and welfare dependant on the Byrne JAG funded programs. It remains undisputed that

30

Case 3:18-cv-05146-WHO Document 60 Filed 03/04/19 Page 31 of 31

United States District Court Northern District of California

1 California risks discontinuing its Byrne JAG programs if it loses funding. Expediting disbursal

2 would not prejudicially affect the federal government’s related interests in federal immigration

3 enforcement or maintaining the confidentiality of law enforcement information. Mandamus relief

4 is appropriate.

5

CONCLUSION

6

For the reasons stated, California and San Francisco’s motions for summary judgment are

7 GRANTED and the DOJ’s motions for partial dismissal or partial summary judgment are

8 DENIED. Plaintiffs shall prepare a proposed judgment and shall meet and confer with the DOJ

9 concerning its form. Within two weeks of this Order, the parties shall either submit a stipulated

10 form of judgment or two competing versions, with DOJ’s proposed revisions to plaintiff’s form in

11 track changes, along with a Joint Statement if necessary of no more than five pages in length

12 explaining any disagreements.

13

IT IS SO ORDERED.

14 Dated: March 4, 2019

15

_______________________

William H. Orrick

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28 31

City and County of San Francisco v. Jefferson B. Sessions, III et al, Docket No. 3:18-cv-05146 (N.D. Cal. Aug 22, 2018), Court
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of California; United States District Court for the Northern District of California
Other Statutory Actions[890]
3:18-cv-05146
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 32

 
 Case 3:18-cv-05146-WHO Document 63 Filed 03/26/19 Page 1 of 4

1 XAVIER BECERRA Attorney General of California
2 MICHAEL L. NEWMAN Senior Assistant Attorney General
3 SARAH E. BELTON Supervising Deputy Attorney General
4 GARRETT M. LINDSEY CHEROKEE DM MELTON
5 LEE I. SHERMAN (SBN 272271) Deputy Attorneys General
6 300 South Spring Street, Suite 1702 Los Angeles, CA 90013
7 Telephone: (213) 269-6404 Fax: (213) 897-7605
8 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Plaintiff State of California
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14

STATE OF CALIFORNIA, ex rel, XAVIER JUDGMENT AND ORDER GRANTING

15 BECERRA, in his official capacity as

PLAINTIFFS’ MOTIONS FOR

Attorney General of the State of California, SUMMARY JUDGMENT

16

Plaintiff, Judge:

Honorable William H. Orrick

17

Trial Date: None Set

v.

Action Filed: August 23, 2018

18

WILLIAM P. BARR, in his official capacity

19 as Attorney General of the United States, et

al.,

Case No. 18-cv-5169-WHO

20

Defendants.

21

CITY AND COUNTY OF SAN 22 FRANCISCO,

23

Plaintiff,

24

v.

25 WILLIAM P. BARR, in his official capacity

as Attorney General of the United States, et 26 al.,

27

Case No. 18-cv-5146-WHO Defendants.

28

Judgment and Order Granting Plaintiffs’ Motions for Summary Judgment (18-cv-5169-WHO and 18-cv-5146-WHO)

Case 3:18-cv-05146-WHO Document 63 Filed 03/26/19 Page 2 of 4

1

Plaintiffs challenged five requirements for FY 2018 Edward Byrne Memorial Justice

2 Assistance Grants, herein referred to as the FY 2018 Immigration Enforcement Requirements,

3 found in paragraphs 41, 42, 43, 44, 45, 46, and 47 of Exhibit D of the Request for Judicial Notice

4 filed by Defendants as Docket Number 25-1 in State of California, ex rel, Xavier Becerra v.

5 Whitaker, No. 18-cv-5169, and paragraphs 41, 42, 43, 44, 45, 46, and 47 of Exhibit C of the

6 Request for Judicial Notice filed by Defendants as Docket Number 27-1 in City and County of

7 San Francisco v. Whitaker, No. 18-cv-5146. On December 21, 2018, Plaintiff State of California,

8 ex rel., Xavier Becerra, California Attorney General (“the State” or “California”) and Plaintiff

9 City and County of San Francisco (“San Francisco”) (collectively, “Plaintiffs”) filed Motions for

10 Summary Judgment (“Plaintiffs’ Motions”). On December 3, 2018 Defendants filed a Partial

11 Motion to Dismiss and Partial Motion for Summary Judgment (“Defendants Motion,” collectively

12 with Plaintiffs’ Motions, “the Motions”). A hearing on the Motions was held on February 13,

13 2019, at 2:00 p.m.

14

On March 4, 2019, I granted Plaintiffs’ Motions and denied Defendants’ Motion (CA Dkt.

15 No. 47; SF Dkt. No. 60). Pursuant to Federal Rule of Civil Procedure 58, I hereby ENTER

16 judgment in favor of Plaintiffs and against Defendants, and grant the following relief as set forth

17 below:
DECLARATION 18
The Court finds declaratory relief under 28 U.S.C. § 2201 is appropriate in this case. It is 19
hereby DECLARED that: 20
1. The FY 2018 Immigration Enforcement Requirements are unconstitutional and 21
unlawful because they: (i) exceed the congressional authority conferred on the 22
Executive Branch and are ultra vires on their face; (ii) they exceed Congress’s 23
spending powers under Article I of the Constitution to the extent Congress conferred 24
authority on the Attorney General; and (iii) they violate the Administrative Procedure 25
Act. 26
2. 8 U.S.C. § 1373 is unconstitutional on its face under the Tenth Amendment of the 27
United States Constitution. 28
1
Judgment and Order Granting Plaintiffs’ Motions for Summary Judgment (18-cv-5169-WHO and 18-cv-5146-WHO)

Case 3:18-cv-05146-WHO Document 63 Filed 03/26/19 Page 3 of 4

1

PERMANENT INJUNCTION

2

The Court also finds that each of the necessary elements for issuing a permanent injunction

3 is met. In particular, the Court finds that Plaintiffs have succeeded on the merits of their claims

4 and that absent an injunction Plaintiffs would suffer irreparable injury; the balance of equities

5 favor Plaintiffs; and the requested relief is in the public interest. Pursuant to Federal Rule of Civil

6 Procedure 65, it is now ORDERED that Defendants ARE HEREBY RESTRAINED AND

7 ENJOINED from committing, performing, directly or indirectly, the following acts:

8

1. Using the FY 2018 Immigration Enforcement Requirements as conditions for Byrne

9

JAG funding for any California state entity, San Francisco, any California political

10

subdivision, or any jurisdiction in the United States.

11

2. Withholding, terminating, or clawing back JAG funding from, or disbarring or

12

making ineligible for JAG, any California state entity, San Francisco, any California

13

political subdivision, or any jurisdiction in the United States on the basis of the FY

14

2018 Immigration Enforcement Requirements.

15

3. Withholding, terminating, or clawing back JAG funding from, or disbarring or

16

making ineligible for JAG, any California state entity or any California political

17

subdivision on account of any grant condition challenged in this lawsuit and based on

18

California Government Code section 7282 et seq. (the “TRUST Act”); California

19

Government Code section 7283 et seq. (the “TRUTH Act”); California Government

20

Code section 7284 et seq. (the “Values Act”).

21

4. Enforcing 8 U.S.C. § 1373’s statutory obligations against any California state entity

22

or political subdivision.

23

Consistent with my March 4, 2019 Order granting Plaintiffs’ Motions, it is now ORDERED

24 that the nationwide aspect of the permanent injunctive relief set forth above is STAYED until

25 further rulings from the Ninth Circuit.

26

MANDATORY INJUNCTION

27

As set forth in my March 4, 2019 Order, I found all the necessary elements for issuing

28 California mandamus relief are met. I hereby ORDER defendants to issue without further delay
2
Judgment and Order Granting Plaintiffs’ Motions for Summary Judgment (18-cv-5169-WHO and 18-cv-5146-WHO)

Case 3:18-cv-05146-WHO Document 63 Filed 03/26/19 Page 4 of 4

1 the fiscal year 2018 JAG awards, without enforcement of the enjoined conditions, and JAG

2 funding, upon a jurisdiction’s acceptance of the award, to the California Board of State and

3 Community Corrections, and all California political subdivisions that applied for JAG awards for

4 fiscal year 2018. Acceptance of the FY 2018 awards by the California Board of State and

5 Community Corrections or any California political subdivision shall not be construed as

6 acceptance of the enjoined conditions. After the jurisdiction or entity accepts the fiscal year 2018

7 award, Defendants are further ORDERED to process and approve the jurisdiction’s requests for

8 drawdowns of the jurisdiction’s fiscal year 2018 JAG funds as it would in the ordinary course,

9 and without regard to the enjoined conditions, compliance with 8 U.S.C. § 1373, or whether the

10 jurisdiction spent its own money on the program or activity funded.

11

IT IS SO ORDERED

12

DATED: March 26, 2019

13

____________________________

Hon. William H. Orrick

14

United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3
Judgment and Order Granting Plaintiffs’ Motions for Summary Judgment (18-cv-5169-WHO and 18-cv-5146-WHO)

City and County of San Francisco v. Jefferson B. Sessions, III et al, Docket No. 3:18-cv-05146 (N.D. Cal. Aug 22, 2018), Court
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of California; United States District Court for the Northern District of California
Other Statutory Actions[890]
3:18-cv-05146
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 5

 
 Case 3:18-cv-05146-WHO Document 65 Filed 05/03/19 Page 1 of 2

1 JOESPH H. HUNT

Assistant Attorney General 2 DAVID L. ANDERSON

3 United States Attorney JOHN R. TYLER

4 Assistant Branch Director
DANIEL D. MAULER 5 Trial Attorney

6

U.S. Department of Justice Civil Division, Federal Programs Branch

7 1100 L Street, NW Washington, D.C. 20005

8 Telephone: (202) 616-0773

Facsimile: (202) 616-8470

9 E-mail:

dan.mauler@usdoj.gov

10

COUNSEL FOR DEFENDANTS WILLIAM P. BARR, Attorney

11 General of the United States; MATT M. DUMMERMUTH, Principal Deputy Assistant

12 Attorney General; and U.S. DEPARTMENT OF

JUSTICE 13

IN THE UNITED STATES DISTRICT COURT 14

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 CITY AND COUNTY OF 18 SAN FRANCISCO,

19

Plaintiff,

v.

20 WILLIAM P. BARR et al.,
21

22

Defendants.

DEFENDANTS’ NOTICE OF APPEAL No. 3:18-cv-05146-WHO

23

24 PLEASE TAKE NOTICE that the Defendants hereby appeal to the United States Court of
25 Appeals for the Ninth Circuit from this Court’s Judgment and Order dated March 26, 2019
26 (Docket No. 63), and from all earlier rulings and interlocutory orders on which the Judgment and
27
28 Order was based or that merged into it, including, but not limited, to the Order Granting

Case 3:18-cv-05146-WHO Document 65 Filed 05/03/19 Page 2 of 2

1 Plaintiff’s Motion for Summary Judgment and Denying Defendants’ Motion for Partial Dismissal

2 or Partial Summary Judgment, dated March 4, 2019 (Docket No. 60).

3 Respectfully submitted,

4

JOSEPH H. HUNT

5

Assistant Attorney General

6

DAVID L. ANDERSON

7

United States Attorney

8

JOHN R. TYLER

Assistant Branch Director

9

10

/s/ Daniel D. Mauler

11

DANIEL D. MAULER

(Va. Bar No.: 73190)

12

Trial Attorney

U.S. Department of Justice

13

Civil Division - Federal Programs Branch

14

1100 L Street, NW Washington, D.C. 20005

15

Telephone: (202) 202-616-0773

Facsimile: (202) 616-8470

16

E-mail: dan.mauler@usdoj.gov

17

COUNSEL FOR DEFENDANTS

18

WILLIAM P. BARR, Attorney General of the United States; MATT M.

19

DUMMERMUTH, Principal Deputy Assistant

Attorney General; and U.S. DEPARTMENT OF

20

JUSTICE

21

22

23

24

25

26

27

28

2