Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 1 of 24
APPEAL,MASON,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:17−cv−05720

The City of Chicago v. Sessions III Assigned to: Honorable Harry D. Leinenweber Case in other court: 17−02991
18−02649 18−02885 Cause: 05:702 Administrative Procedure Act
Plaintiff
The City of Chicago

Date Filed: 08/07/2017 Date Terminated: 08/15/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Andrew W Worseck City of Chicago, Department of Law 30 North LaSalle Street Suite 1230 Chicago, IL 60602 312.744.0220 Email: aworseck@cityofchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward N Siskel City of Chicago Department of Law 121 N. LaSalle Room 600 Chicago, IL 60602 (312) 744−0220 Email: edward.siskel@cityofchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriel I. Cepeda Derieux Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 295−6303 Email: Adriel.CepedaDerieux@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ari Holtzblatt Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6964 Email: Ari.Holtzblatt@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ari J Savitzky Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6232 Email: Ari.Savitzky@wilmerhale.com

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TERMINATED: 05/18/2020 PRO HAC VICE
Bridget Fahey WilmerHale 1875 Pennsylvania Ave NW Washington, DC 20006 (202) 663−6746 Email: Bridget.Fahey@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
David W. Ogden Wilmer Cutler Pickering Hale & Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663−6440 Email: David.Ogden@wilmerhale.com ATTORNEY TO BE NOTICED
Debo P. Adegbile Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10013 (212) 295−6717 Email: Debo.Adegbile@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Harnaik Singh Kahlon Riley Safer Holmes & Cancila, LLP 70 West Madison Avenue Suite 2900 Chicago, IL 60602 (312) 471−8751 Email: nkahlon@rshc−law.com ATTORNEY TO BE NOTICED
Jack E Starcher Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW, Room 6066E Washington, DC 20006 (202) 663−6017 Email: jack.starcher@wilmerhale.com TERMINATED: 02/26/2020 PRO HAC VICE
Jamie S Gorelick Wilmer Cutler Pickering Hale and Dorr LLP Washington, DC 20006 Washington, DC, DC 20006 (202) 663−6500 Email: Jamie.Gorelick@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Charles Abbuhl Wilmer Cutler Pickering Hale & Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 (202) 663−6671

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 3 of 24

Plaintiff
The United States Conference of Mayors

Email: joshua.abbuhl@usdoj.gov TERMINATED: 07/06/2018 PRO HAC VICE
Justin Anthony Houppert City of Chicago − Department of Law 30 N. LaSalle St. − Suite 800 Chicago, IL 60602 312−744−0468 Email: justin.houppert@cityofchicago.org ATTORNEY TO BE NOTICED
Laura A Kleinman Riley Safer Holmes & Cancila, LLP Three First National Plaza 70 W. Madison Street, Suite 2900 Chicago, IL 60602 312.471.8685 Email: lkleinman@rshc−law.com ATTORNEY TO BE NOTICED
Matthew Charles Crowl Riley Safer Holmes & Cancila LLP Three First National Plaza 70 West Madison Street Suite 2900 Chicago, IL 60602 312−471−8720 Email: mcrowl@rshc−law.com ATTORNEY TO BE NOTICED
Molly Jennings Wilmer Cutler Pickering Hale and Dorr LLP 1801 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6947 Email: Molly.Jennings@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald S. Safer Riley Safer Holmes & Cancila LLP 70 West Madison St Suite 2900 Chicago, IL 60602 (312) 471−8736 Email: rsafer@rshc−law.com ATTORNEY TO BE NOTICED
Tal Cohen Chaiken Riley Safer Holmes & Cancila LLP Three First National Plaza 70 West Madison Street Suite 2900 Chicago, IL 60602 Email: tchaiken@rshc−law.com ATTORNEY TO BE NOTICED
represented by Brian C Haussmann Tabet DiVito Rothstein 209 South LaSalle Street 7th Floor

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 4 of 24

Plaintiff The United States Conference of Mayors
Plaintiff The United States Conference of Mayors

Chicago, IL 60604 (312)762 9450 Email: bhaussmann@tdrlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Matthew Fitzgerald Tabet DiVito Rothstein 209 South LaSalle Street 7th Floor Chicago, IL 60604 (312) 762−9450 Email: jfitzgerald@tdrlawfirm.com ATTORNEY TO BE NOTICED
Katherine M. O'Brien Tabet Divito & Rothstein Llc 209 S. Lasalle Street 7th Floor Chicago, IL 60604 (312) 762−9450 Email: kobrien@tdrlawfirm.com ATTORNEY TO BE NOTICED
represented by Brian C Haussmann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Matthew Fitzgerald (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Jefferson Beauregard Sessions III Attorney General of the United States

represented by Arjun Garg U.S. Department of Justice 20 Massachusetts Ave, NW Civil Division, Federal Programs Branch Washington, DC 20530 (202) 305−8613 Email: arjun.garg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Duane Mauler U.S. Department of Justice 1100 L Street, NW Washington, DC 20005 (202) 616−0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Joseph Buckingham United States Department of Justice 20 Massachusetts Avenue, NW Room 7119 Washington, DC 20001

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Amicus The California State Legislature
Amicus County of Santa Clara Office of the County Counsel 70 W. Hedding Street East Wing, 9th Floor San Jose, CA 95110 (408) 299−5900

202 514 3330 Email: stephen.buckingham@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
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 TERMINATED: 04/19/2019
represented by David Meir Zionts Covington & Burling LLP One CityCenter 850 Tenth St. NW Washington, DC 20001 (202) 662−5987 Email: dzionts@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
George P. Apostolides Saul Ewing Arnstein & Lehr LLP 161 N. Clark Street Suite 4200 Chicago, IL 60601 (312) 876−7102 Email: george.apostolides@saul.com ATTORNEY TO BE NOTICED
John C. Gekas Saul Ewing Arnstein & Lehr LLP 161 N. Clark Street Suite 4200 Chicago, IL 60601 312 876−7124 Email: john.gekas@saul.com ATTORNEY TO BE NOTICED
represented by Brian C Haussmann (See above for address) ATTORNEY TO BE NOTICED
Caesar A. Tabet Tabet DiVito & Rothstein, LLC The Rookery Building 209 South LaSalle Street Seventh Floor Chicago, IL 60604 (312) 762−9450 Email: ctabet@tdrlawfirm.com ATTORNEY TO BE NOTICED

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 6 of 24

Amicus
Administrative Law, Constitutional Law, and Immigration Law Scholars

John Matthew Fitzgerald (See above for address) ATTORNEY TO BE NOTICED
Kavita Kandala Narayan Office of the County Counsel, County of Santa Clara East Wing, 9th Floor 70 W. Hedding Street San Jose, CA 95110 (408) 299−5900 Email: kavita.narayan@cco.sccgov.org PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Susan Trice Office of the County Counsel, County of Santa Clara East Wing, 9th Floor 70 W. Hedding Street San Jose, CA 95110 (408) 299−5900 Email: laura.trice@cco.sccgov.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Harry Sandick Patterson Belknap Webb & Tyler Llp 1133 Avenue Of The Americas New York, NY 10036 (212) 336−2000 Email: hsandick@pbwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Francis Malone Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street #3900 Chicago, IL 60606 (312)984−3100 Email: edward.malone@bfkn.com ATTORNEY TO BE NOTICED
Jamison Michael Isaac Davies Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 (212) 336−0000 Email: jmdavies@pbwt.com TERMINATED: 07/18/2018 PRO HAC VICE
Michael D Schwartz Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 (212) 336−2252 Email: mschwartz@pbwt.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 7 of 24

Amicus Current and Former Prosecutors and Law Enforcement Leaders Amicus Illinois Business Immigration Coalition
Amicus Erie Neighborhood House

represented by Chirag Gopal Badlani Hughes Socol Piers Resnick & Dym, Ltd. 70 W. Madison Street Suite 4000 Chicago, IL 60602 (312) 604−2776 Email: cbadlani@hsplegal.com ATTORNEY TO BE NOTICED
represented by Chad Ian Golder Munger, Tolles & Olson LLP 7th Floor 1155 F Street NW Washington, DC 20004 (202) 220−1100 Email: chad.golder@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
John J. Hamill , Jr. DLA Piper LLP (US) 444 West Lake Street Suite 900 Chicago, IL 60606 (312) 368−7036 Email: john.hamill@dlapiper.com ATTORNEY TO BE NOTICED
Kenneth L. Schmetterer DLA Piper LLP (US) 444 West Lake Street Suite 9900 Chicago, IL 60606 (312) 368−4000 Email: kenneth.schmetterer@dlapiper.com ATTORNEY TO BE NOTICED
Molly K. Priedeman Munger, Tolles & Olson LLP 27th Floor 560 Mission Street San Francisco, CA 94105 (415) 512−4065 Email: molly.priedeman@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Stephen Dufau Munger, Tolles & Olson LLP 350 South Grand Avenue 50th Floor Los Angeles, CA 90071 (213) 683−9541 Email: nick.dufau@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David B. Sudzus Faegre Drinker Biddle & Reath LLP

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 8 of 24

Amicus National Immigrant Justice Center
Amicus Cook County

191 North Wacker Drive Suite 3700 Chicago, IL 60606 (312) 569−1000 Email: david.sudzus@faegredrinker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly Ann Petrocelli Faegre Drinker Biddle & Reath LLP 191 N. Wacker Drive Suite 3700 Chicago, IL 60606 (312) 569−1343 Email: Kelly.Petrocelli@faegredrinker.com ATTORNEY TO BE NOTICED
represented by Mark M. Fleming National Immigrant Justice Center 208 S. Lasalle Street Suite 1300 Chicago, IL 60604 (312) 660−1628 Email: mfleming@heartlandalliance.org ATTORNEY TO BE NOTICED
represented by David Henry Hoffman Sidley Austin LLP (Chicago) One South Dearborn Street Chicago, IL 60603 (312) 853−2174 Email: david.hoffman@sidley.com ATTORNEY TO BE NOTICED
Jillian Rebecca Dent Stueve Siegel Hanson LLP Suite 200 460 Nichols Road Kansas City, MO 64112 (816) 714−7100 Email: dent@stuevesiegel.com ATTORNEY TO BE NOTICED
Justin Adam Benson Sidley Austin LLP 1501 K ST NW Washington, DC 20005 (202) 736−8000 Email: jbenson@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsay Nicole Walter Sidley Austin LLP #600 1501 K. Street, N.W. Washington, DC 20005 (202) 736−8752 Email: lindsay.walter@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 9 of 24

Amicus City of Calumet City
Amicus State of New York State of New York

Neil Gerard Nandi Loeb & Loeb LLP 321 N. Clark, Suite 2300 Chicago, IL Email: nnandi@loeb.com ATTORNEY TO BE NOTICED
represented by Burton S. Odelson Odelson & Sterk, Ltd. 3318 West 95th Street Evergreen Park, IL 60805 (708) 424−5678 Email: attyburt@aol.com ATTORNEY TO BE NOTICED
Robert R. Wilder Odelson & Strek 3318 W. 95th Street Evergreen Park, IL 60805 708−424−5678 Email: rwilder@odelsonsterk.com ATTORNEY TO BE NOTICED
represented by Caroline Anais Olsen New York State Office of the Attorney General 25th Fl. 120 Broadway New York, NY 10271 (212) 416−6184 Email: caroline.olsen@ag.ny.gov PRO HAC VICE ATTORNEY TO BE NOTICED

V. Movant State of Illinois

represented by Cara A Hendrickson Business and Professional People for the Public Interest 25 East Washington Street Suite 1515 Chicago, IL 60602 312−759−8250 Email: chendrickson@bpichicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darren Bernens Kinkead Office of the Attorney General State of Illinois 100 West Randolph Street, 11th Floor Chicago, IL 60601 312−814−5700 Email: dkinkead@atg.state.il.us ATTORNEY TO BE NOTICED
Jeanne Marie Witherspoon Illinois Attorney General's Office 100 West Randolph Street

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 10 of 24
Chicago, IL 60601 312−814−3000 Email: jwitherspoon@atg.state.il.us ATTORNEY TO BE NOTICED
Jeffrey J Vandam Office of the Attorney General of Illinois Public Interest Counsel 100 W. Randolph 11th Floor Chicago, IL 60601 (312) 814−1188 Email: JVanDam@atg.state.il.us ATTORNEY TO BE NOTICED
Karyn L Bass Ehler Grant & Eisenhofer P.A. 30 N. LaSalle St. Suite 2350 Chicago, IL 60602 (312)6105350 Email: kbassehler@gelaw.com ATTORNEY TO BE NOTICED
Matthew Joseph Martin Illinois Attorney General's Office 100 West Randolph Street 11th Floor Chicago, IL 60601 312 814−8735 Email: MMartin@atg.state.il.us ATTORNEY TO BE NOTICED

Date Filed 08/07/2017
08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017

# Docket Text
1 COMPLAINT filed by The City of Chicago; Filing fee $ 400, receipt number 0752−13449393. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Worseck, Andrew) (Entered: 08/07/2017)
2 CIVIL Cover Sheet (Worseck, Andrew) (Entered: 08/07/2017)
3 ATTORNEY Appearance for Plaintiff The City of Chicago by Andrew W Worseck (Worseck, Andrew) (Entered: 08/07/2017)
4 ATTORNEY Appearance for Plaintiff The City of Chicago by Matthew Charles Crowl (Crowl, Matthew) (Entered: 08/07/2017)
5 ATTORNEY Appearance for Plaintiff The City of Chicago by Laura A Kleinman (Kleinman, Laura) (Entered: 08/07/2017)
6 NOTICE by The City of Chicago of Claims of Unconstitutionality (Worseck, Andrew) (Entered: 08/07/2017)
7 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450122. (Jamie, Gorelick) (Entered: 08/07/2017)
8 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450224. (Ogden, David) (Entered: 08/07/2017)
CASE ASSIGNED to the Honorable Harry D. Leinenweber. Designated as Magistrate Judge the Honorable Michael T. Mason. (meg, ) (Entered: 08/07/2017)
9 ATTORNEY Appearance for Plaintiff The City of Chicago by Harnaik Singh Kahlon (Kahlon, Harnaik) (Entered: 08/07/2017)

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08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/07/2017 08/08/2017
08/09/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017
08/10/2017
08/14/2017 08/15/2017

10 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450359. (Holtzblatt, Ari) (Entered: 08/07/2017)
11 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450651. (Savitzky, Ari) (Entered: 08/07/2017)
12 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450712. (Jennings, Molly) (Entered: 08/07/2017)
13 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13450767. (Fahey, Bridget) (Entered: 08/07/2017)
14 ATTORNEY Appearance for Plaintiff The City of Chicago by Edward N Siskel (Siskel, Edward) (Entered: 08/07/2017)
15 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13451085. (Adegbile, Debo) (Entered: 08/07/2017)
16 SUMMONS Issued as to Jefferson Beauregard Sessions III, U.S. Attorney. (tt, ) (Entered: 08/08/2017)
17 AFFIDAVIT of Service filed by Plaintiff The City of Chicago regarding Summons in a Civil Action; Complaint; Exhibits served on David Burroughs, Mail Clerk Supervisor & Authorized Agent, 950 Pennsylvania Ave., NW, Washington, DC 20530 on August 7, 2017 (Crowl, Matthew) (Entered: 08/08/2017)
18 ATTORNEY Appearance for Plaintiff The City of Chicago by Ronald S. Safer (Safer, Ronald) (Entered: 08/09/2017)
19 MOTION by Plaintiff The City of Chicago to expedite Briefing Schedule and Unopposed Motion for Leave to File Oversized Brief (Attachments: # 1 Text of Proposed Order)(Siskel, Edward) (Entered: 08/10/2017)
20 NOTICE of Motion by Edward N Siskel for presentment of motion to expedite 19 before Honorable Harry D. Leinenweber on 8/15/2017 at 09:30 AM. (Siskel, Edward) (Entered: 08/10/2017)
21 MOTION by Plaintiff The City of Chicago for preliminary injunction (Attachments: # 1 Text of Proposed Order)(Siskel, Edward) (Entered: 08/10/2017)
22 NOTICE of Motion by Edward N Siskel for presentment of motion for preliminary injunction 21 before Honorable Harry D. Leinenweber on 8/15/2017 at 09:30 AM. (Siskel, Edward) (Entered: 08/10/2017)
23 MEMORANDUM by The City of Chicago in support of motion for preliminary injunction 21 (Siskel, Edward) (Entered: 08/10/2017)
24 DECLARATION of Lt. Kevin R. Hannigan regarding motion for preliminary injunction 21 (Siskel, Edward) (Entered: 08/10/2017)
25 DECLARATION of Larry Sachs regarding motion for preliminary injunction 21 (Siskel, Edward) (Entered: 08/10/2017)
26 Request for Judicial Notice by The City of Chicago in Support of Motion for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Siskel, Edward) (Entered: 08/10/2017)
27 DECLARATION of Andrew W. Worseck regarding motion for preliminary injunction 21 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Worseck, Andrew) (Entered: 08/10/2017)
28 MEMORANDUM by Jefferson Beauregard Sessions III in Opposition to motion to expedite 19 (Attachments: # 1 Excerpt from 2015 DOJ Grants Financial Guide)(Simpson, W.) (Entered: 08/14/2017)
29 MINUTE entry before the Honorable Harry D. Leinenweber:Motion hearing held on 8/15/2017. The City's Motion to expedite briefing schedule 19 is denied. The

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08/18/2017
08/23/2017 08/24/2017 08/29/2017 08/30/2017 08/30/2017 08/30/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017

Unopposed motion to file oversized brief is granted. Defendant's response to plaintiff's motion for preliminary injunction to be filed by 8/24/2017. Plaintiff's reply brief to be filed by 8/31/2017. Any Amicus Curiae brief to be filed by 8/31/2017. Preliminary Injunction hearing set for 9/11/2017 at 10:00 a.m. The Applications of Jamie S. Gorelick, David W. Ogden, Ari J. Holtzblatt, Ari J. Savitzky, Molly M. Jennings, Bridget Fahey and and Debo P. Adegbile to appear pro hac vice [7,8,10,11,12,13,15] are granted. Mailed notice (wp, ) (Entered: 08/16/2017)
30 TRANSCRIPT OF PROCEEDINGS held on 08/15/2017 before the Honorable Harry D. Leinenweber. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR, Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 9/8/2017. Redacted Transcript Deadline set for 9/18/2017. Release of Transcript Restriction set for 11/16/2017. (Walsh, Judy) (Entered: 08/18/2017)
31 ATTORNEY Appearance for Defendant Jefferson Beauregard Sessions III by Stephen Joseph Buckingham (Buckingham, Stephen) (Entered: 08/23/2017)
32 MEMORANDUM by Jefferson Beauregard Sessions III in Opposition to motion for preliminary injunction 21 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Buckingham, Stephen) (Entered: 08/24/2017)
33 ATTORNEY Appearance for Defendant Jefferson Beauregard Sessions III by Arjun Garg (Garg, Arjun) (Entered: 08/29/2017)
34 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13528239. (Zionts, David) (Entered: 08/30/2017)
35 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13531161. (Trice, Laura) (Entered: 08/30/2017)
36 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13531407. (Narayan, Kavita) (Entered: 08/30/2017)
37 ATTORNEY Appearance for Amicus Administrative Law, Constitutional Law, and Immigration Law Scholars by Harry Sandick (Sandick, Harry) (Entered: 08/31/2017)
38 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13533779. (Schwartz, Michael) (Entered: 08/31/2017)
39 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13533800. (Davies, Jamison) (Entered: 08/31/2017)
40 ATTORNEY Appearance for Amicus The California State Legislature by John C. Gekas (Gekas, John) (Entered: 08/31/2017)
41 ATTORNEY Appearance for Amicus Current and Former Prosecutors and Law Enforcement Leaders by Chirag Gopal Badlani (Badlani, Chirag) (Entered: 08/31/2017)
42 Brief of Amici Curiae in Support of Plaintiff's Motion for Preliminary Injunction by Current and Former Prosecutors and Law Enforcement Leaders (Attachments: # 1 Exhibit A)(Badlani, Chirag) (Entered: 08/31/2017)
43 MINUTE entry before the Honorable Harry D. Leinenweber:The Applications of David M. Zionts, Laura S. Trice and Kavita Narayan to appear pro hac vice [34, 35, 36] are granted. Mailed notice (wp, ) (Entered: 08/31/2017)
44 ATTORNEY Appearance for Amicus Illinois Business Immigration Coalition by John J. Hamill, Jr (Hamill, John) (Entered: 08/31/2017)
45 ATTORNEY Appearance for Amicus Illinois Business Immigration Coalition by Kenneth L. Schmetterer (Schmetterer, Kenneth) (Entered: 08/31/2017)

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08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017
08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017

46 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13535680. − Illinois Business Immigration Coalition (Golder, Chad) (Entered: 08/31/2017)
47 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13535748. − Illinois Business Immigration Coalitition (Priedeman, Molly) (Entered: 08/31/2017)
48 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13535780. − Illinois Business Immigration Coalition (Dufau, Nicholas) (Entered: 08/31/2017)
49 Brief of Amicus Curiae Illinois Business Immigration Coalition In Support Of Plaintiff's Motion For Preliminary Injunction Relief − by Illinois Business Immigration Coalition (Hamill, John) (Entered: 08/31/2017)
50 ATTORNEY Appearance for Amicus County of Santa Clara by Brian C Haussmann (Haussmann, Brian) (Entered: 08/31/2017)
51 08.31.17 Brief of Amici Curiae by County of Santa Clara (Haussmann, Brian) (Entered: 08/31/2017)
52 ATTORNEY Appearance for Amicus County of Santa Clara by Caesar A. Tabet (Tabet, Caesar) (Entered: 08/31/2017)
53 MEMORANDUM by Administrative Law, Constitutional Law, and Immigration Law Scholars in support of motion for preliminary injunction 21 (Brief Amici Curiae) (Sandick, Harry) (Entered: 08/31/2017)
54 ATTORNEY Appearance for Amicus The California State Legislature by George P. Apostolides (Apostolides, George) (Entered: 08/31/2017)
55 ATTORNEY Appearance for Amicus County of Santa Clara by John Matthew Fitzgerald (Fitzgerald, John) (Entered: 08/31/2017)
56 MOTION by Amicus The California State Legislature for leave to file Unopposed Motion of the California State Legislature for Leave to File a Brief as Amicus Curiae (Attachments: # 1 Exhibit 1: Brief of the California State Legislature as Amicus Curiae In Support of Plaintiff's Motion for Preliminary Injunction, # 2 Exhibit 1−A: Letter from Hon. J. Sessions and Hon. J. Kelly to Hon. T. Cantil−Sakauye, # 3 Exhibit 1−B: Letter from E. Holder to Hon. J. Sessions)(Gekas, John) (Entered: 08/31/2017)
57 NOTICE of Motion by John C. Gekas for presentment of motion for leave to file,, 56 before Honorable Harry D. Leinenweber on 9/7/2017 at 09:30 AM. (Gekas, John) (Entered: 08/31/2017)
58 ATTORNEY Appearance for Amicus Administrative Law, Constitutional Law, and Immigration Law Scholars by Edward Francis Malone (Malone, Edward) (Entered: 08/31/2017)
59 ATTORNEY Appearance for Amicus Erie Neighborhood House by Kelly Ann Petrocelli (Petrocelli, Kelly) (Entered: 08/31/2017)
60 ATTORNEY Appearance for Amicus Erie Neighborhood House by David B. Sudzus (Sudzus, David) (Entered: 08/31/2017)
61 MEMORANDUM by Erie Neighborhood House in support of motion for preliminary injunction 21 [Brief of Amicus Curiae in support of motion for preliminary injunction] (Attachments: # 1 Exhibit A)(Sudzus, David) (Entered: 08/31/2017)
62 MEMORANDUM by National Immigrant Justice Center in support of motion for preliminary injunction 21 (Attachments: # 1 Exhibit A−G)(Fleming, Mark) (Entered: 08/31/2017)
63 ATTORNEY Appearance for Amicus Cook County by David Henry Hoffman (Hoffman, David) (Entered: 08/31/2017)
64 ATTORNEY Appearance for Amicus Cook County by Jillian Rebecca Dent (Dent, Jillian) (Entered: 08/31/2017)

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 14 of 24

08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017 08/31/2017
08/31/2017 09/01/2017 09/07/2017 09/07/2017 09/11/2017 09/12/2017
09/15/2017
09/15/2017

65 ATTORNEY Appearance for Amicus Cook County by Neil Gerard Nandi (Nandi, Neil) (Entered: 08/31/2017)
66 MOTION by Amicus Cook CountyBRIEF OF AMICUS CURIAE COOK COUNTY AND OTHER AMICI IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Hoffman, David). (Entered: 08/31/2017)
67 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13538026. (Benson, Justin) (Entered: 08/31/2017)
68 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−13538028. (Walter, Lindsay) (Entered: 08/31/2017)
69 REPLY by The City of Chicago to memorandum in opposition to motion 32 in support of Plaintiff's Motion For Preliminary Injunction (Attachments: # 1 Statutory Addendum)(Siskel, Edward) (Entered: 08/31/2017)
70 Second Request for Judicial Notice by The City of Chicago in Support of Motion for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Siskel, Edward) (Entered: 08/31/2017)
71 DECLARATION of Bridget Fahey regarding reply to response to motion 69 , motion for preliminary injunction 21 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fahey, Bridget) (Entered: 08/31/2017)
72 Brief as Amicus Curiae by The California State Legislature in Support of Plaintiff's Motion for Preliminary Injunction (Attachments: # 1 Exhibit A Letter from Hon. J.Sessions & Hon. J. Kelly to Hon. T. Cantil−Sakauye, # 2 Exhibit B−Letter from E. Holder to Hon.J. Sessions)(Gekas, John) (Entered: 09/01/2017)
73 ATTORNEY Appearance for Amicus City of Calumet City by Burton S. Odelson (Odelson, Burton) (Entered: 09/07/2017)
74 ATTORNEY Appearance for Amicus City of Calumet City by Robert R. Wilder (Wilder, Robert) (Entered: 09/07/2017)
75 MINUTE entry before the Honorable Harry D. Leinenweber: Preliminary Injunction Hearing held on 9/11/2017.Mailed notice (wp, ) (Entered: 09/11/2017)
76 TRANSCRIPT OF PROCEEDINGS held on 9/11/17 before the Honorable Harry D. Leinenweber. Court Reporter Contact Information: Kathleen_Fennell@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 10/3/2017. Redacted Transcript Deadline set for 10/13/2017. Release of Transcript Restriction set for 12/11/2017. (Fennell, Kathleen) (Entered: 09/12/2017)
77 MINUTE entry before the Honorable Harry D. Leinenweber:The Court grants the City a preliminary injunction against the Attorney Generals imposition of the notice and access conditions on the Byrne JAG grant. The Court denies the Citys Motion for a Preliminary Injunction with respect to the compliance condition, because the City has failed to establish a likelihood of success on the merits.Mailed notice (wp, ) (Entered: 09/15/2017)
78 MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/15/2017:Mailed notice(wp, ) (Entered: 09/15/2017)

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 15 of 24

09/26/2017 09/26/2017 09/26/2017 09/26/2017 09/26/2017 09/26/2017 09/26/2017 09/26/2017
09/27/2017 09/28/2017
09/29/2017 10/06/2017 10/06/2017 10/06/2017 10/06/2017 10/06/2017 10/11/2017

79 NOTICE of appeal by Jefferson Beauregard Sessions III regarding orders 78 (Garg, Arjun) (Entered: 09/26/2017)
80 MOTION by Defendant Jefferson Beauregard Sessions III to stay Nationwide Application of Preliminary Injunction (Attachments: # 1 Text of Proposed Order)(Garg, Arjun) (Entered: 09/26/2017)
81 MEMORANDUM by Jefferson Beauregard Sessions III in support of motion to stay 80 (Garg, Arjun) (Entered: 09/26/2017)
82 DECLARATION of Alan R. Hanson regarding motion to stay 80 (Garg, Arjun) (Entered: 09/26/2017)
83 NOTICE of Motion by Arjun Garg for presentment of motion to stay 80 before Honorable Harry D. Leinenweber on 9/28/2017 at 09:30 AM. (Garg, Arjun) (Entered: 09/26/2017)
84 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 79 (gcy, ) (Entered: 09/26/2017)
85 TRANSMITTED to the 7th Circuit the short record on notice of appeal 79 . Notified counsel. (gcy, ) (Entered: 09/26/2017)
86 NOTICE OF EMAIL NOTIFICATION FAILURE, for document # 79 , 80 , 84 , 81 , 82 , 85 , 83 sent to Attorney George P. Apostolides returned as:. Mailed to attorney George P. Apostolides a letter re: bounce back email and a Notification of Change of Address form. Notices have been set to No. Counsel must email the Clerk's Office at Docketing_ILND@uscourts.gov when a Notification of Change of Address has been filed to ensure electronic notification is reset. (ek, ) (Entered: 09/27/2017)
87 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 79 ; USCA Case No. 17−2991. (aee, ) (Entered: 09/27/2017)
89 MINUTE entryMotion hearing held on 9/28/2017. Plaintiff (and Amici, if any) shall file a response to Defendants motion to stay [ECF No. 80] on or before 10/6/2017. Defendant's unopposed oral motion for an extension to answer or otherwise plead is granted. Defendant shall answer or otherwise plead on or before 11/20/2017. Motion of substitution [ECF No. 88] is granted. The Applications of Michael Schwartz, Jamison Davies, Chad Golder, Molly Priedeman, Nicholas Dufau, Justin Benson, and Lindsay Walter to appear pro hac vice [ECF Nos. 38, 39, 46, 47, 48, 67, 68] are granted. Motion by California State Legislature for leave to file brief as amicus curiae [ECF No. 56] is granted nunc pro tunc. Mailed notice (wp, ) (Entered: 10/03/2017)
88 WITHDRAWING Stephen J. Buckingham as counsel for Defendant Jefferson Beauregard Sessions III and substituting Arjun Garg as counsel of record (Garg, Arjun) (Entered: 09/29/2017)
90 ATTORNEY Appearance for Plaintiff The United States Conferences of Mayors by Brian C Haussmann (Haussmann, Brian) (Entered: 10/06/2017)
91 MOTION by Plaintiffs The United States Conferences of Mayors, The United States Conference of Mayors to intervene (Attachments: # 1 Exhibit)(Haussmann, Brian) (Entered: 10/06/2017)
92 NOTICE of Motion by Brian C Haussmann for presentment of motion to intervene 91 before Honorable Harry D. Leinenweber on 10/11/2017 at 09:30 AM. (Haussmann, Brian) (Entered: 10/06/2017)
93 ATTORNEY Appearance for Plaintiffs The United States Conference of Mayors, The United States Conference of Mayors by John Matthew Fitzgerald (Fitzgerald, John) (Entered: 10/06/2017)
94 MEMORANDUM by The City of Chicago in Opposition to motion to stay 80 Nationwide Application of Preliminary Injunction (Siskel, Edward) (Entered: 10/06/2017)
95 SUPPLEMENT to motion to stay 80 (Attachments: # 1 Exhibit A − Supreme Court Order)(Garg, Arjun) (Entered: 10/11/2017)

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 16 of 24

10/11/2017
10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/17/2017 10/19/2017 10/19/2017 10/19/2017
10/19/2017

96 MINUTE entry before the Honorable Harry D. Leinenweber:Motion hearing held on 10/11/2017. Briefing schedule set on the United States Conference of Mayors' Motion to Intervene 91 : Defendant's response brief to be filed by 10/27/2017. The Conference of Mayors' reply brief to be filed by 11/3/2017. Mailed notice (wp, ) (Entered: 10/12/2017)
97 MINUTE entry before the Honorable Harry D. Leinenweber:The Attorney Generals Motion to Stay Nationwide Application of Preliminary Injunction [ECF No. 80] is denied.Mailed notice (wp, ) (Entered: 10/13/2017)
98 MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/13/2017:Mailed notice(wp, ) (Entered: 10/13/2017)
99 MOTION by Plaintiff The City of Chicago for reconsideration regarding order on motion for preliminary injunction, memorandum opinion and order 78 (Siskel, Edward) (Entered: 10/13/2017)
100 NOTICE of Motion by Edward N Siskel for presentment of motion for reconsideration 99 before Honorable Harry D. Leinenweber on 10/17/2017 at 09:30 AM. (Siskel, Edward) (Entered: 10/13/2017)
101 MEMORANDUM by The City of Chicago in support of motion for reconsideration 99 (Siskel, Edward) (Entered: 10/13/2017)
102 Text of Proposed Order on Motion for Reconsideration by The City of Chicago 99 (Siskel, Edward) (Entered: 10/13/2017)
103 DECLARATION of Ari Holtzblatt regarding motion for reconsideration 99 (Attachments: # 1 Exhibit A)(Holtzblatt, Ari) (Entered: 10/13/2017)
104 MINUTE entry before the Honorable Harry D. Leinenweber:Motion hearing held on 10/17/2017. Defendant's response to Chicago's motion for reconsideration 99 to be filed by 10/23/2017. Chicago's reply brief to be filed by 10/30/2017.Mailed notice (wp, ) (Entered: 10/17/2017)
105 ATTORNEY Appearance for Plaintiff The United States Conference of Mayors by Katherine M. O'brien (O'brien, Katherine) (Entered: 10/19/2017)
106 INTERNET Citation Note. Decision re order on motion to stay, memorandum opinion and order 98 cited material from the internet. The cited material is attached. (Multiple Chancellors: Reforming the National Injunction) (Library, ) (Entered: 10/19/2017)
107 TRANSCRIPT OF PROCEEDINGS held on 09/28/2017 before the Honorable Harry D. Leinenweber. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR, Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 11/9/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/17/2018. (Walsh, Judy) (Entered: 10/19/2017)
108 TRANSCRIPT OF PROCEEDINGS held on 10/17/2017 before the Honorable Harry D. Leinenweber. Order Number: 28699. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR, Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 11/9/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/17/2018. (Walsh, Judy) (Entered: 10/19/2017)

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 17 of 24

10/23/2017 10/23/2017 10/23/2017
10/24/2017
10/27/2017 10/30/2017 10/30/2017 11/02/2017 11/02/2017 11/03/2017 11/09/2017 11/09/2017 11/14/2017 11/15/2017

109 MOTION by Plaintiff The United States Conference of Mayors for preliminary injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit A−F, # 3 Exhibit Exhibit 2)(Haussmann, Brian) (Entered: 10/23/2017)
110 MEMORANDUM by Jefferson Beauregard Sessions III in Opposition to motion for reconsideration 99 (Garg, Arjun) (Entered: 10/23/2017)
111 TRANSCRIPT OF PROCEEDINGS held on 09/28/2017 before the Honorable Harry D. Leinenweber. Order Number: 28499. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 11/13/2017. Redacted Transcript Deadline set for 11/24/2017. Release of Transcript Restriction set for 1/22/2018. (Walsh, Judy) (Entered: 10/23/2017)
112 TRANSCRIPT OF PROCEEDINGS held on 10/11/2017 before the Honorable Harry D. Leinenweber. Order Number: 28738. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 11/14/2017. Redacted Transcript Deadline set for 11/24/2017. Release of Transcript Restriction set for 1/22/2018. (Walsh, Judy) (Entered: 10/24/2017)
113 MEMORANDUM by Jefferson Beauregard Sessions III in Opposition to motion to intervene 91 (Attachments: # 1 Exhibit A − Order Denying Intervention, # 2 Exhibit B − Amicus Brief in Philadelphia)(Garg, Arjun) (Entered: 10/27/2017)
114 REPLY by The City of Chicago to memorandum in opposition to motion 110 for reconsideration (Siskel, Edward) (Entered: 10/30/2017)
115 DECLARATION of Ari Holtzblatt regarding reply to response to motion 114 for reconsideration (Attachments: # 1 Exhibit A)(Holtzblatt, Ari) (Entered: 10/30/2017)
116 MOTION by Defendant Jefferson Beauregard Sessions III under Local Rule 78.5 Requesting Decision on Plaintiff's Motion for Partial Reconsideration (Garg, Arjun) (Entered: 11/02/2017)
117 NOTICE of Motion by Arjun Garg for presentment of motion for miscellaneous relief 116 before Honorable Harry D. Leinenweber on 11/16/2017 at 09:30 AM. (Garg, Arjun) (Entered: 11/02/2017)
118 REPLY by Plaintiff The United States Conference of Mayors (Attachments: # 1 Exhibit 11.03.17 Exhibit A to Reply, # 2 Exhibit 11.03.17 Exhibit B to Reply, # 3 Exhibit 11.03.17 Exhibit C to Reply, # 4 Exhibit 11.03.17 Exhibit D to Reply)(Haussmann, Brian) (Entered: 11/03/2017)
119 MOTION by Defendant Jefferson Beauregard Sessions III for extension of time to file answer regarding complaint 1 (Unopposed) (Attachments: # 1 Text of Proposed Order)(Garg, Arjun) (Entered: 11/09/2017)
120 NOTICE of Motion by Arjun Garg for presentment of motion for extension of time to file answer 119 before Honorable Harry D. Leinenweber on 11/14/2017 at 09:30 AM. (Garg, Arjun) (Entered: 11/09/2017)
121 MINUTE entry before the Honorable Harry D. Leinenweber:Defendant's Unopposed Motion for extension of time to 12/20/2017 in which to respond to plaintiff's complaint 119 is granted.Mailed notice (wp, ) (Entered: 11/14/2017)
122 MINUTE entry before the Honorable Harry D. Leinenweber: Plaintiff's Motion for partial reconsideration now set for 9:30 a.m. is reset to be heard at 9:00 a.m. on

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 18 of 24

11/16/2017 11/16/2017 11/16/2017 11/21/2017
11/28/2017 12/01/2017 12/06/2017 12/06/2017 12/12/2017 12/12/2017 12/13/2017 12/20/2017
01/03/2018 01/03/2018 01/03/2018 01/03/2018

11/16/2017.Mailed notice (wp, ) (Entered: 11/15/2017)
123 MINUTE entry before the Honorable Harry D. Leinenweber:Motion hearing held on 11/16/2017. The Court will rule by mail on the City of Chicago's Motion for Partial Reconsideration and the United States Conference of Mayors' Motion to Intervene. Mailed notice (wp, ) (Entered: 11/16/2017)
124 MINUTE entry before the Honorable Harry D. Leinenweber:Chicago's Motion for Partial Reconsideration 99 is denied. The Conference's Motion to Intervene 91 is denied.Mailed notice (wp, ) (Entered: 11/16/2017)
125 MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/16/2017:Mailed notice(wp, ) (Entered: 11/16/2017)
126 ORDER dated 11/21/17 from the 7th Circuit regarding notice of appeal 79 ; Appellate case no. : 17−2991. IT IS ORDERED that the motion for partial stay of the preliminary injunction is DENIED. IT IS FURTHER ORDERED that briefing in this appeal shall proceed as follows: 1. The brief and required short appendix of the appellant are due by November 28, 2017. 2. The brief of the appellee is due by December 28, 2017. 3. The reply brief of the appellant, if any, is due by January 11, 2018. (aee, ) (Entered: 11/21/2017)
127 NOTICE to Transmit Record on Appeal regarding notice of appeal 79 ; USCA Case No. 17−2991. (aee, ) (Entered: 11/29/2017)
128 CERTIFIED and transmitted to the USCA for the 7th Circuit the long record on appeal 79 (USCA no. 17−2991) Via Email. (ek, ) (Entered: 12/01/2017)
129 MOTION by Defendant Jefferson Beauregard Sessions III to stay Deadline to Respond to Plaintiff's Complaint (Attachments: # 1 Text of Proposed Order)(Garg, Arjun) (Entered: 12/06/2017)
130 NOTICE of Motion by Arjun Garg for presentment of motion to stay 129 before Honorable Harry D. Leinenweber on 12/13/2017 at 09:30 AM. (Garg, Arjun) (Entered: 12/06/2017)
131 RESPONSE by The City of Chicago to MOTION by Defendant Jefferson Beauregard Sessions III to stay Deadline to Respond to Plaintiff's Complaint 129 (Kleinman, Laura) (Entered: 12/12/2017)
132 ATTORNEY Appearance for Plaintiff The City of Chicago by Tal Cohen Chaiken (Chaiken, Tal) (Entered: 12/12/2017)
133 MINUTE entry before the Honorable Harry D. Leinenweber:Motion hearing held on 12/13/2017. Defendant's Motion to stay 129 is denied. Defendant's responsive pleading to be filed by 1/3/2018. Status hearing set for 2/8/2018 at 09:00 AM.Mailed notice (wp, ) (Entered: 12/15/2017)
134 ORDER dated 12/19/17 from the 7th Circuit regarding notice of appeal 79 ; Appellate case no. : 17−2991. IT IS ORDERED that the motion filed by the National Sheriffs' Association is GRANTED to the extent that the amicus curiae shall submit a brief that complies withthis court's rules on or before December 21, 2017. Specifically, the brief must contain disclosure statements for each attorney listed on the brief. See Fed. R. App. P. 26.1, 29(a)(4)(A); Cir. R. 26.1. If a compliant brief is submitted by December 21, the clerk of this court shall file it instanter. (aee, ) (Entered: 12/20/2017)
135 MOTION by Defendant Jefferson Beauregard Sessions III for leave to file excess pages and Set Briefing Schedule (Unopposed) (Attachments: # 1 Text of Proposed Order)(Garg, Arjun) (Entered: 01/03/2018)
136 NOTICE of Motion by Arjun Garg for presentment of motion for leave to file excess pages 135 before Honorable Harry D. Leinenweber on 1/16/2018 at 09:30 AM. (Garg, Arjun) (Entered: 01/03/2018)
137 MOTION by Defendant Jefferson Beauregard Sessions III to dismiss (Attachments: # 1 Text of Proposed Order)(Garg, Arjun) (Entered: 01/03/2018)
138 NOTICE of Motion by Arjun Garg for presentment of motion to dismiss 137 before Honorable Harry D. Leinenweber on 1/16/2018 at 09:30 AM. (Garg, Arjun) (Entered:

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 19 of 24

01/03/2018 01/03/2018
01/16/2018
01/25/2018 01/26/2018 01/29/2018 01/31/2018 01/31/2018 01/31/2018 01/31/2018 01/31/2018
01/31/2018 01/31/2018 01/31/2018 01/31/2018 01/31/2018 01/31/2018

01/03/2018)
139 MEMORANDUM by Jefferson Beauregard Sessions III in support of motion to dismiss 137 (Garg, Arjun) (Entered: 01/03/2018)
140 Request for Judicial Notice by Jefferson Beauregard Sessions III in Support of Motion to Dismiss (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Garg, Arjun) (Entered: 01/03/2018)
141 MINUTE entry before the Honorable Harry D. Leinenweber: Defendant's Unopposed Motion for Leave to File Oversized Brief and Set Briefing Schedule [ECF No. 135] is granted. In accordance with the proposed briefing schedule, Plaintiff's response to Defendant's pending Motion to Dismiss [ECF No. 137] shall be filed on or before 1/31/2018. Defendant's reply shall be filed on or before 2/15/2018. The Court will rule by mail. Defendant's Local Rule 78.5 Notice Requesting Decision [ECF No. 116] is granted nunc pro tunc. The United States Conference of Mayors' Motion for Preliminary Injunction [ECF No. 109] is denied as moot given the Court's Nov. 16, 2017 Memorandum Opinion and Order [ECF No. 125]. Status hearing set for 2/8/18 is vacated. Ruling by mail. Mailed notice(maf) (Entered: 01/19/2018)
142 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−14046882. (Cepeda Derieux, Adriel) (Entered: 01/25/2018)
143 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−14050098. (Olsen, Caroline) (Entered: 01/26/2018)
144 ORDER: Motions for leave to appear pro hac vice are granted 142 , 143 . Signed by the Honorable Harry D. Leinenweber on 1/29/2018. Mailed notice (aee, ) (Entered: 01/29/2018)
145 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−14070328. (Abbuhl, Joshua) (Entered: 01/31/2018)
146 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752−14070112. (Starcher, Jack) (Entered: 01/31/2018)
147 ATTORNEY Appearance for Plaintiff The City of Chicago by Justin Anthony Houppert (Houppert, Justin) (Entered: 01/31/2018)
148 ATTORNEY Appearance for Amicus State of New York by Caroline Anais Olsen (Olsen, Caroline) (Entered: 01/31/2018)
149 MOTION by Amicus State of New York for leave to file Amicus Brief on Behalf of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Vermont, Washington, and the District of Columbia (Attachments: # 1 Exhibit Proposed Amicus Brief)(Olsen, Caroline) (Entered: 01/31/2018)
150 MOTION by Plaintiff The City of Chicago for partial summary judgment (Siskel, Edward) (Entered: 01/31/2018)
151 NOTICE of Motion by Edward N Siskel for presentment of motion for partial summary judgment 150 before Honorable Harry D. Leinenweber on 2/6/2018 at 09:30 AM. (Siskel, Edward) (Entered: 01/31/2018)
152 MEMORANDUM by The City of Chicago in support of motion for partial summary judgment 150 and in opposition to Defendant's motion to dismiss 137 (Siskel, Edward) (Entered: 01/31/2018)
153 RULE 56 (c)(1) Statement by The City of Chicago regarding motion for partial summary judgment 150 (Siskel, Edward) (Entered: 01/31/2018)
154 DECLARATION of Larry Sachs regarding motion for partial summary judgment 150 (Siskel, Edward) (Entered: 01/31/2018)
155 DECLARATION of Lieutenant Kevin R. Hannigan regarding motion for partial summary judgment 150 (Siskel, Edward) (Entered: 01/31/2018)

Case: 1:17-cv-5720 As of: 05/30/2020 02:08 PM CDT 20 of 24

01/31/2018 01/31/2018
01/31/2018 02/06/2018 02/06/2018 02/06/2018 02/06/2018
02/06/2018 02/13/2018 02/16/2018 02/22/2018 02/28/2018 02/28/2018 02/28/2018 03/21/2018 04/06/2018

156 DECLARATION of Edwin Kaup regarding motion for partial summary judgment 150 (Attachments: # 1 Exhibit A)(Siskel, Edward) (Entered: 01/31/2018)
157 Request for Judicial Notice by The City of Chicago in Support of Plaintiff's Partial Motion for Summary Judgment and Opposition to Defendant's Motion to Dismiss (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W)(Siskel, Edward) (Entered: 01/31/2018)
158 DECLARATION of Molly Jennings regarding motion for partial summary judgment 150 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Jennings, Molly) Modified on 2/1/2018 (maf, ). (Entered: 01/31/2018)
159 MOTION by Amicus National Immigrant Justice Center for leave to appear as Amici Curiae (Attachments: # 1 Appendix Proposed Amicus Brief)(Fleming, Mark) (Entered: 02/06/2018)
160 NOTICE of Motion by Mark M. Fleming for presentment of motion for leave to appear 159 before Honorable Harry D. Leinenweber on 2/13/2018 at 09:30 AM. (Fleming, Mark) (Entered: 02/06/2018)
161 ATTORNEY Appearance for Amicus National Immigrant Justice Center by Mark M. Fleming (Fleming, Mark) (Entered: 02/06/2018)
162 ORDER: Ruling on motion hearing held. Motions for leave to appear pro hac vice are granted 145 , 146 . Motion for partial motion for summary judgment 150 is entered and briefed as follows: response by 2/28/18, reply by 3/21/18. Leave is granted for briefs to exceed the page limit as stated on the record. Signed by the Honorable Harry D. Leinenweber on 2/7/2018. Mailed notice (aee, ) Modified on 2/7/2018 (aee, ). (Entered: 02/07/2018)
165 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to Appear and File Memorandum as Amici Curiae [ECF No. 149] is granted. Mailed notice(maf) (Entered: 02/21/2018)
163 MINUTE entry before the Honorable Harry D. Leinenweber: MOTION OF THE NATIONAL IMMIGRANT JUSTICE CENTER, AMERICAN CIVIL LIBERTIES UNION, ET. AL. FOR LEAVE TO FILE AN AMICUS BRIEF IN SUPPORT OF PLAINTIFF 159 is granted. Mailed notice(maf) (Entered: 02/16/2018)
164 Amicus Brief in Support of Plaintiff's Cross−Motion for Summary Judgment by National Immigrant Justice Center (Fleming, Mark) (Entered: 02/16/2018)
166 MEMORANDUM by State of New York Amicus Brief for the States of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Vermont, and Washington, and the District of Columbia in Support of Plaintiff (Olsen, Caroline) (Entered: 02/22/2018)
167 REPLY by Jefferson Beauregard Sessions III to MOTION by Defendant Jefferson Beauregard Sessions III to dismiss 137 and Opposition to Plaintiff's Cross−Motion for Partial Summary Judgment (Garg, Arjun) (Entered: 02/28/2018)
168 RULE 56 (c) Statement by Jefferson Beauregard Sessions III regarding motion for partial summary judgment 150 (Garg, Arjun) (Entered: 02/28/2018)
169 DECLARATION of Arjun Garg in Support of Rule 56(d) Request (Garg, Arjun) (Entered: 02/28/2018)
170 REPLY by Plaintiff The City of Chicago to reply to response to motion 167 in support of Plaintiff's motion for partial summary judgment (Siskel, Edward) (Entered: 03/21/2018)
171 WITHDRAWING Arjun Garg as counsel for Defendant Jefferson Beauregard Sessions III and substituting W. Scott Simpson as counsel of record (Simpson, W.) (Entered: 04/06/2018)

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04/24/2018
05/18/2018 05/18/2018 05/23/2018
05/31/2018 06/07/2018 06/19/2018 06/26/2018 07/03/2018 07/06/2018 07/11/2018 07/13/2018 07/16/2018 07/17/2018 07/17/2018

172 ORDER dated 4/24/18 from the 7th Circuit regarding notice of appeal 79 ; Appellate case no. : 17−2991. IT IS ORDERED that the motion for partial stay is DENIED without prejudice to renewal. To the extent that Attorney General Jefferson Sessions is asking for reconsideration of this court's order denying his motion for partial stay, issued on November 21, 2017, the request is DENIED. No member of the panel has requested that the motion be considered by the court en banc. See Seventh Circuit Operating Procedure 1(a)(2). If Attorney General Sessions files a petition for rehearing en banc, he may ask this court for a partial stay with his petition or after any decision by this court to rehear this case en banc. It is more appropriate for the full court to consider a request for stay after Attorney General Sessions has presented his arguments for why en banc rehearing of this appeal is warranted. (aee, ) Modified on 4/24/2018 (aee, ). (Entered: 04/24/2018)
173 MOTION by Plaintiff The City of Chicago For Leave to Cite Supplemental Authority And Request For Decision Pursuant To Local Rule 78.5 (Attachments: # 1 Exhibit 1)(Siskel, Edward) (Entered: 05/18/2018)
174 NOTICE of Motion by Edward N Siskel for presentment of motion for miscellaneous relief 173 before Honorable Harry D. Leinenweber on 5/23/2018 at 09:30 AM. (Siskel, Edward) (Entered: 05/18/2018)
175 MINUTE entry before the Honorable Harry D. Leinenweber: In court hearing held. MOTION by Plaintiff The City of Chicago For Leave to Cite Supplemental Authority And Request For Decision Pursuant To Local Rule 78.5 173 is entered and briefed as follows: response by 5/31/18, reply by 6/7/18. Ruling by mail. Mailed notice(maf) (Entered: 05/23/2018)
176 RESPONSE by Defendant Jefferson Beauregard Sessions III to motion for miscellaneous relief 173 (Simpson, W.) (Entered: 05/31/2018)
177 REPLY by The City of Chicago to Response 176 , MOTION by Plaintiff The City of Chicago For Leave to Cite Supplemental Authority And Request For Decision Pursuant To Local Rule 78.5 173 (Siskel, Edward) (Entered: 06/07/2018)
178 NOTICE by W. Scott Simpson of Change of Address (Simpson, W.) (Entered: 06/19/2018)
179 ORDER dated 6/26/2018 from the 7th Circuit regarding notice of appeal 79 ; Appellate case no. : 17−2991. (jh, ) (Entered: 06/27/2018)
180 MOTION by Attorney Joshua Abbuhl to withdraw as attorney for The City of Chicago. No party information provided (Abbuhl, Joshua) (Entered: 07/03/2018)
181 MINUTE entry before the Honorable Harry D. Leinenweber:Motion of Joshua Charles Abbuhl to withdraw as one of the attorneys for plaintiff City of Chicago 180 is granted. (clw, ) (Entered: 07/06/2018)
182 MOTION by Attorney Jamison Davies to withdraw as attorney for Administrative Law, Constitutional Law, and Immigration Law Scholars. No party information provided (Davies, Jamison) (Entered: 07/11/2018)
183 MOTION by Plaintiff The City of Chicago For Leave to Cite Supplemental Authority in Support of Its Motion For Summary Judgment (Attachments: # 1 Exhibit 1)(Siskel, Edward) (Entered: 07/13/2018)
184 NOTICE of Motion by Edward N Siskel for presentment of motion for miscellaneous relief 183 before Honorable Harry D. Leinenweber on 7/19/2018 at 09:30 AM. (Siskel, Edward) (Entered: 07/16/2018)
185 MOTION by Plaintiff The United States Conference of MayorsReassignment of Case as Related (Attachments: # 1 Exhibit 1 to Motion for Reassignment of Case As Related, # 2 Exhibit 2 to Motion for Reassignment of Case As Related)(Haussmann, Brian) (Entered: 07/17/2018)
186 NOTICE of Motion by Brian C Haussmann for presentment of motion for miscellaneous relief, 185 before Honorable Harry D. Leinenweber on 7/19/2018 at 09:30 AM. (Haussmann, Brian) (Entered: 07/17/2018)

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07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/24/2018 07/27/2018
07/27/2018 07/31/2018 07/31/2018 08/01/2018 08/01/2018 08/01/2018 08/01/2018 08/06/2018

187 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to withdraw as attorney 182 and motion to cite additional authority 183 are granted. Mailed notice(maf) (Entered: 07/18/2018)
188 NOTICE of Motion by Brian C Haussmann for presentment of motion for miscellaneous relief, 185 before Honorable Harry D. Leinenweber on 7/24/2018 at 09:30 AM. (Haussmann, Brian) (Entered: 07/18/2018)
189 MOTION by Movant State of Illinois to reassign case (Kinkead, Darren) (Entered: 07/18/2018)
190 NOTICE of Motion by Darren Bernens Kinkead for presentment of motion to reassign case 189 before Honorable Harry D. Leinenweber on 7/24/2018 at 09:30 AM. (Kinkead, Darren) (Entered: 07/18/2018)
191 ATTORNEY Appearance for Movant State of Illinois by Cara A Hendrickson (Hendrickson, Cara) (Entered: 07/18/2018)
192 ATTORNEY Appearance for Movant State of Illinois by Jeanne Marie Witherspoon (Witherspoon, Jeanne) (Entered: 07/18/2018)
193 ATTORNEY Appearance for Movant State of Illinois by Karyn L Bass Ehler (Bass Ehler, Karyn) (Entered: 07/18/2018)
194 ATTORNEY Appearance for Movant State of Illinois by Darren Bernens Kinkead (Kinkead, Darren) (Entered: 07/18/2018)
195 ATTORNEY Appearance for Movant State of Illinois by Matthew Joseph Martin (Martin, Matthew) (Entered: 07/18/2018)
196 ATTORNEY Appearance for Movant State of Illinois by Jeffrey J Vandam (Vandam, Jeffrey) (Entered: 07/18/2018)
197 MINUTE entry before the Honorable Harry D. Leinenweber: Ruling on motion hearing held. Motions to reassign cases are granted [185, 189]. Mailed notice(maf) (Entered: 07/25/2018)
198 Memorandum Opinion and Order: For the reasons stated herein, the Court grants the City of Chicago's Motion for Summary Judgment on Counts I and II and correspondingly denies the Attorney General's Motion to Dismiss Counts I, II, and IV. The Court enters and immediately stays permanent injunctive relief as detailed above. The remaining claims are dismissed as moot. Enter memorandum opinion and order. Signed by the Honorable Harry D. Leinenweber on 7/27/18:Mailed notice(maf) (Entered: 07/27/2018)
199 MOTION by Attorney Bridget Fahey to withdraw as attorney for The City of Chicago. No party information provided (Fahey, Bridget) (Entered: 07/27/2018)
203 MOTION by Unknown Annette Mitchell for complete injunction. (aee, ) Modified on 8/2/2018 (aee, ). (Entered: 08/02/2018)
204 NOTICE of Motion by Annette Mitchell for presentment of motion for complete injunction 203 before Honorable Harry D. Leinenweber on 8/8/2018 at 09:30 AM. (aee, ) (Entered: 08/02/2018)
200 NOTICE of appeal by Jefferson Beauregard Sessions III regarding orders 198 Receipt number: y (Simpson, W.) (Entered: 08/01/2018)
201 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 200 . (yap, ) (Entered: 08/01/2018)
202 TRANSMITTED to the 7th Circuit the short record on notice of appeal 200 . Notified counsel (yap, ) (Entered: 08/01/2018)
205 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 200 ; USCA Case No. 18−2649. (aee, ) (Entered: 08/02/2018)
206 MINUTE entry before the Honorable Harry D. Leinenweber: Annette Mitchell is not a party in this case and her motion 203 is not appropriately before the Court in this matter. Her motion is accordingly denied as moot. Ms. Mitchell is directed to file her

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08/10/2018
08/13/2018 08/14/2018 08/14/2018 08/15/2018 08/15/2018 08/20/2018
08/28/2018 08/28/2018 08/28/2018

motion in the proper case or, if no such case exists, to open a new matter if she so wishes.Mailed notice(maf) (Entered: 08/06/2018)
208 ORDER dated 8/10/18 from the 7th Circuit regarding notice of appeal 200 , notice of appeal 79 ; Appellate case no. : 17−2991 and 18−2649. Rather than take the highly unusual step of allowing piecemeal appeals, see Reiter v. Cooper, 507 U.S. 258, 265 (1993) (noting the "historic federal policy against piecemeal appeals"), we hereby VACATE our decision to rehear No. 17−2991 en banc on September 6, 2018. The stay of the preliminary injunction in No. 17−2991 will remain in effect until the district court issues a proper Rule 65 injunction; accordingly, we DENY the City's motion to dismiss No. 17−2991 as moot. We DENY the Attorney General's motion for initial partial hearing en banc of No. 18−2649 and we DISMISS that appeal because of the lack of a final judgment. Because we are dismissing the appeal in No. 18−2649, we DENY the Attorney General's request to consolidate those appeals. Our denial of the motion for initial partial hearing en banc is without prejudice to the Attorney General's ability to file another appeal once the district court has issued a final judgment. The court is prepared to expedite its consideration of any such appeal, if and when one is filed. Any further details about the way in which the appeal will be handled will be resolved at the time. In light of the above rulings, the City's motion to suspend further briefing is DENIED. (aee, ) (Entered: 08/13/2018)
207 MINUTE entry before the Honorable Harry D. Leinenweber: The Seventh Circuit has vacated its decision to rehear en banc the nationwide scope of the Court's preliminary injunction, though it has left its stay of that injunction in place until this Court enters a proper Rule 65 injunction. Status hearing set for 8/15/18 at 9:00 a.m. to discuss said injunction. Mailed notice(maf) (Entered: 08/13/2018)
209 Statement Regarding Entry of Final Judgment and Rule 65 Injunction STATEMENT by The City of Chicago (Attachments: # 1 Text of Proposed Order (Proposed Final Judgement and Order))(Houppert, Justin) (Entered: 08/14/2018)
210 RESPONSE by Defendant Jefferson Beauregard Sessions III to statement 209 Regarding Entry of Final Judgment and Rule 65 Injunction (Attachments: # 1 Chicago's Response in Opposition to the Petition for Partial Initial Hearing En Banc, # 2 Byrne JAG Solicitation FY 2018, # 3 Final Judgment and Decree, Philadelphia v. Sessions)(Simpson, W.) (Entered: 08/14/2018)
211 ORDER: Status hearing held. Enter Final Judgment Order. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 8/15/2018:Mailed notice(maf ) (Entered: 08/15/2018)
212 ENTERED JUDGMENT Signed by the Honorable Harry D. Leinenweber on 8/15/2018:Mailed notice(maf) (Entered: 08/15/2018)
213 TRANSCRIPT OF PROCEEDINGS held on 08/15/2018 before the Honorable Harry D. Leinenweber. Order Number: 31846. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 9/10/2018. Redacted Transcript Deadline set for 9/20/2018. Release of Transcript Restriction set for 11/19/2018. (Walsh, Judy) (Entered: 08/20/2018)
214 NOTICE of appeal by Jefferson Beauregard Sessions III regarding orders 211 , 212 Receipt number: y (Simpson, W.) (Entered: 08/28/2018)
215 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 214 . (gcy, ) (Entered: 08/28/2018)
216 TRANSMITTED to the 7th Circuit the short record on notice of appeal 214 . Notified counsel. (gcy, ) (Entered: 08/28/2018)

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08/29/2018 10/22/2018
10/22/2018
10/22/2018 04/18/2019 08/20/2019 02/26/2020 03/02/2020 05/18/2020

217 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 214 ; USCA Case No. 18−2885. (aee, ) (Entered: 08/29/2018)
218 CERTIFIED copy of order dated 08/30/18 from the 7th Circuit regarding notice of appeal 79 ; Appellate case no. : 17−2991. The district court has entered an order setting forth the terms of the permanent injunction as required by Federal Rule of Civil Procedure 65. Accordingly, this appeal is DISMISSED for the reasons stated in this court's order issued on August 10, 2018. (aee, ) (Entered: 10/22/2018)
219 CERTIFIED copy of order dated 08/10/18 from the 7th Circuit regarding notice of appeal 200 , notice of appeal 79 ; Appellate case no. : 17−2991 and 18−2649. The court is prepared to expedite its consideration of any such appeal, if and when one is filed. Any further details about the way in which the appeal will be handled will be resolved at the time. In light of the above rulings, the City's motion to suspend further briefing is DENIED. (aee, ) (Entered: 10/22/2018)
220 MANDATE of USCA dated 10/22/18 regarding notice of appeal 79 ;USCA No.17−2991 ; No record to be returned. (aee, ) (Entered: 10/22/2018)
221 WITHDRAWING W. Scott Simpson as counsel for Defendant Jefferson Beauregard Sessions III and substituting Daniel Duane Mauler as counsel of record (Mauler, Daniel) (Entered: 04/18/2019)
222 MOTION by Attorney Jack Starcher to withdraw as attorney for The City of Chicago. No party information provided (Starcher, Jack) (Entered: 08/20/2019)
223 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to withdraw as attorney 222 is granted; Attorney Jack E Starcher terminated.Mailed notice(maf) (Entered: 02/26/2020)
224 MOTION by Attorney Ari J. Savitzky to withdraw as attorney for The City of Chicago. No party information provided (Holtzblatt, Ari) (Entered: 03/02/2020)
225 MINUTE entry before the Honorable Harry D. Leinenweber: Motion to withdraw Ari J. Savitzky as attorney 224 is granted. Mailed notice(maf) (Entered: 05/18/2020)

 
 Case: 1:17-cv-05720 Document #: 1 Filed: 08/07/17 Page 1 of 46 PageID #:1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
Plaintiff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
Defendant.

Civil Action No. 1:17-cv-5720

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiff the City of Chicago hereby alleges as follows:
INTRODUCTION 1. Chicago brings this action to enjoin the Attorney General of the United States from imposing sweeping new conditions on an established federal grant program—the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”)—that has for years provided crucial support for law enforcement in Chicago and other cities. These new conditions—which would give federal officials the power to enter city facilities and interrogate arrestees at will and would force the City to detain individuals longer than justified by probable cause, solely to permit federal officials to investigate their immigration status—are unauthorized and unconstitutional. These new conditions also fly in the face of longstanding City policy that promotes cooperation between local law enforcement and immigrant communities, ensures access to essential city services for all residents, and makes all Chicagoans safer. Neither federal law nor the United

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States Constitution permits the Attorney General to force Chicago to abandon this critical local policy.
2. Since the 1980s, the City has directed its police officers to prioritize local law enforcement and public safety rather than diverting time, attention, and resources to investigating residents’ immigration status. Now codified as the Welcoming City Ordinance, this policy promotes public safety by ensuring that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime; and by ensuring that police officers focus on criminal activity occurring in Chicago instead of federal civil immigration infractions. The Welcoming City Ordinance represents a clear, concerted, and smart policy choice in favor of inclusion and strong relations between the community and law enforcement. Chicago, its residents, and its leaders have stood behind that choice for over a generation.
3. The federal government’s aggressive and escalating efforts to force Chicago and other cities, counties, and States to adhere to federal priorities began during the current President’s first week in office, with an executive order targeting so-called sanctuary cities—i.e., cities that have exercised their basic right to self-government by focusing their resources on enforcement of local laws rather than on policing federal civil immigration violations. The executive order commanded federal agencies to withhold funds from these cities unless they changed their policies. After a court enjoined enforcement of much of that order, the Department of Justice (the “Department” or “DOJ”) singled out Chicago and eight other cities by demanding, on pain of losing their funding under last year’s Byrne JAG program, that they certify compliance with 8 U.S.C. § 1373 (“Section 1373”), a federal statute that bars local
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governments from restricting the sharing of immigration status information with federal immigration agents.
4. Chicago complied. In fact, Chicago officials simply do not collect immigration status information in the first place, and thus there is no information for the City to share (or restrict from sharing). Moreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials. Accordingly, because it is in fact in compliance, Chicago certified its compliance with Section 1373 in late June without conceding that the federal government could constitutionally condition Byrne JAG funding on compliance with that provision. In response to Chicago’s and other cities’ good-faith effort, the Department issued an ominous press statement indicating that it believes some cities that certified compliance with Section 1373 are in violation of that statute. But the Department did not identify those jurisdictions, or explain why they are not in compliance.
5. Then, in late July 2017, the Department announced via press release that the FY 2017 Byrne JAG application would include two additional intrusive grant conditions. These new conditions would require Chicago (1) to detain its own residents and others at federal immigration officials’ request, in order to give the federal government a 48-hour notice window prior to an arrestee’s release; and (2) to give federal immigration officials unlimited access to local police stations and law enforcement facilities in order to interrogate any suspected noncitizen held there, effectively federalizing all of the City’s detention facilities. On top of this, the Department has demanded yet another certification of compliance with Section 1373—but this time under the cloud of confusion caused by the Department’s aforementioned statements.
6. The FY 2017 Byrne JAG application is due on September 5, 2017 and requires compliance with all three of these conditions.
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7. These conditions are inconsistent with the Byrne JAG statute itself, with the limitations imposed by the Constitution’s Spending Clause and the Fourth Amendment, and with basic separation of powers principles. Compliance with the conditions would require Chicago to violate Illinois law. And it would undermine public safety and effective policing in the City and upend Chicago’s Welcoming City policy.
8. The executive branch of the federal government may not arrogate to itself the powers that our Constitution reserves to Congress, on the one hand, or to state and local governments on the other. It may not unilaterally concoct and import into the Byrne JAG program sweeping new policy conditions that were never approved (and indeed were considered and rejected) by Congress and that would federalize local jails and police stations, mandate warrantless detentions in order to investigate for federal civil infractions, sow fear in local immigrant communities, and ultimately make the people of Chicago less safe. Nor may it continue to insist that Chicago certify compliance with Section 1373 even as it withholds clear guidance about the City’s prior certifications while implying that it does not accept them, or others like them, for some unarticulated reason.
9. The Department puts Chicago in an untenable position, with the clock winding down: agree, by September 5, 2017, to accept the Department’s new unconstitutional grant conditions, which would wipe away policies that have built trust and cooperation between law enforcement and immigrant communities over the decades; or stand on its rights and forfeit crucial funds that it and the eleven other jurisdictions on whose behalf it submits Byrne JAG applications have counted on for more than a decade to provide critical (and, at times, lifesaving) equipment to Chicago Police officers and critical services to Chicago residents.
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10. Chicago thus brings this action to avoid that impending harm and to prevent the Department from imposing unlawful and counterproductive conditions on the Byrne JAG program that would override local judgments about how best to enforce the law and protect the community. Chicago seeks a declaration that it complies with Section 1373 and that the Department’s immigration-related conditions on Byrne JAG funding are unlawful, as well as an injunction preventing those conditions from being included in the FY 2017 Byrne JAG application or in future applications, thereby ensuring that Chicago’s longstanding Welcoming City Ordinance can remain in full effect.
PARTIES 11. Plaintiff Chicago is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Illinois. Chicago was incorporated in 1837, is the third largest city in the United States, and is home to almost 3 million residents, including a diverse array of immigrant communities. 12. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States. He is sued in his official capacity. The Attorney General is the federal official in charge of the United States Department of Justice, which took and threatens imminently to take the governmental actions at issue in this lawsuit.
JURISDICTION AND VENUE 13. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. 14. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(e)(1) because substantial events giving rise to this action occurred therein and because Chicago resides therein and no real property is involved in this action.
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FACTUAL ALLEGATIONS I. CHICAGO HAS OPERATED UNDER ITS WELCOMING CITY POLICY FOR
DECADES 15. Chicago is one of America’s great cities, a metropolis of almost 3 million people that has attracted migrants and immigrants of different races, nationalities, and creeds to the shores of Lake Michigan for nearly two centuries, seeking good jobs and better futures for themselves and their children. 16. Chicago’s diverse population requires a public safety strategy that takes into account the needs of all the City’s residents. One aspect of that strategy—Chicago’s Welcoming City Ordinance—has developed over the past few decades to address the needs and concerns of the City’s residents. 17. The first formal iteration of the current policy was announced by then-Mayor Harold Washington in March 1985 in Executive Order 85-1, which provided that “all residents of the City of Chicago, regardless of nationality or citizenship, shall have fair and equal access to municipal benefits, opportunities and services.” To ensure this equal access, the Order stated that City officials would not “request information about or otherwise investigate or assist in the investigation of the citizenship or residency status of any person” unless required by other law to do so. 18. Mayor Richard M. Daley reiterated this policy upon taking office in April 1989. His Executive Order 89-6 similarly emphasized that all Chicago residents “shall have fair and equal access to municipal benefits, opportunities and services” and prohibited City agents and agencies from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by statute, ordinance, federal regulation or court decision.”
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19. In 2006, the Chicago City Council unanimously incorporated the policies of the 1985 and 1989 executive orders into the City’s Municipal Code by enacting the Welcoming City Ordinance in response to increased pressure from the federal government to assist in immigration enforcement. The City Council was concerned by the suggestion that Chicago should “expend limited local resources on traditionally federal functions.” Furthermore, the City Council noted that “requiring, or even promoting, local enforcement of immigration laws” would both “give[] rise to an increased threat of immigrant and minority profiling and harassment” and “cause a chilling effect on crime prevention and solving if both witnesses and victims are called upon to weigh a need to cooperate with local authorities against a fear of deportation, thereby undermining long-standing efforts to engender trust and cooperation between law enforcement officials and immigrant communities.”
20. Like the executive orders that preceded it, the 2006 Ordinance prohibited City “agent[s]” and “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” It also barred disclosure of “information regarding the citizenship or residency status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains.”
21. In 2012, Mayor Rahm Emmanuel and the Chicago City Council expanded the Welcoming City Ordinance to address increasing federal requests that Chicago detain individuals suspected of immigration-related offenses. Also known as “immigration detainers” or “immigration holds,” these requests issued by U.S. Immigration and Customs Enforcement (“ICE”) ask that local law enforcement “maintain custody” of a targeted individual for up to “48
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hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department [of Homeland Security (“DHS”)].” 8 C.F.R. § 287.7(d).
22. The expanded Welcoming City Ordinance provides that undocumented individuals will be detained at the federal government’s request only when Chicago has an independent reason to believe they might pose a threat to public safety: for example, if they have an outstanding criminal warrant, have been convicted of a felony, are a defendant in a criminal case where judgment has not been entered and a felony charge is pending, or have been identified as a known gang member.
23. This expansion responded in part to concerns that “undocumented Chicagoans who have not been convicted of a serious crime and are not wanted on a criminal warrant” might be denied “basic protections” in the face of an ICE detainer request.1
24. These concerns have proven to be well founded. Since the Welcoming City Ordinance was expanded in 2012, many courts have held that detaining persons for additional time solely because of an ICE detainer request is unconstitutional or otherwise unlawful. County of Santa Clara v. Trump, Nos. 17-cv-00574-WHO & 17-cv-00485-WHO, 2017 WL 1459081, at *4 (N.D. Cal. Apr. 25, 2017) (“Several courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because [such] requests are often not supported by an individualized determination of probable cause that a crime has been committed.”); see, e.g., Morales v. Chadbourne, 793 F.3d 208, 214-218 (1st Cir. 2015); Galarza v. Szalczyk, 745 F.3d 634, 643-645 (3d Cir. 2014). Indeed, apparently recognizing that such detentions are likely illegal, United States Senators Jeff Flake and John McCain recently introduced legislation that would
1 See Press Release, Office of the Mayor, City of Chicago, Mayor Emanuel Introduces Welcoming City Ordinance 1 (July 10, 2012), https://tinyurl.com/yb6pzhhy.
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“indemnify local law enforcement entities for complying” with ICE detainers. See S. 1039, 115th Cong. (2017); see id. § 2 (“[T]he Federal Government shall be responsible to pay for the costs of any legally cognizable injuries to third parties resulting from the issuance and execution of [immigration] detainers.”).
25. The 2012 Welcoming City Ordinance reflects the Chicago City Council’s findings that (1) “the cooperation of all persons, both documented citizens and those without documentation status, is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems,” (2) “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all [of the City’s] residents,” and (3) “[t]he cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City.” Chicago Municipal Code § 2-173-005.
26. In its current form, the Welcoming City Ordinance, codified as Chapter 2-173 of the Chicago Municipal Code, contains four key prohibitions relevant to this lawsuit.
a. Subject to certain exceptions for certain criminal suspects and gang members,2 Section 2-173-042 prohibits City “agent[s]” or “agenc[ies]” from “arrest[ing], detain[ing] or continu[ing] to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation,” or doing so “based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.”
2 Specifically, and as noted above, the Section 2-173-042 restrictions do not apply if the subject of the ICE investigation “(1) has an outstanding criminal warrant; (2) has been convicted of a felony in any court of competent jurisdiction; (3) is a defendant in a criminal case in any court of competent jurisdiction where a judgment has not been entered and a felony charge is pending; or (4) has been identified as a known gang member.”
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b. Subject to the same exceptions, as well as an exception for “legitimate law enforcement purpose[s] . . . unrelated to the enforcement of a civil immigration law,” Section 2-173-042 also prohibits City “agent[s]” or “agenc[ies]” from, “while on duty, expend[ing] their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date,” or from “permit[ting] ICE agents access to a person being detained by, or in the custody of, the agency or agent” or “permit[ting] ICE agents use of agency facilities for investigative interviews or other investigative purpose.”
c. Section 2-173-020 prohibits City “agent[s]” or “agenc[ies]” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.”
d. Section 2-173-030 prohibits City “agent[s]” or “agenc[ies]” from “disclos[ing] information regarding the citizenship or immigration status of any person” unless “otherwise provided under applicable federal law,” the City is “required to do so by legal process,” or “such disclosure has been authorized in writing by the individual to whom such information pertains.”
27. These and other provisions of the Welcoming City Ordinance play a vital role in strengthening the relationship between Chicago’s government, its police force, and its immigrant communities. This relationship is built city block by city block, and it is essential that Chicago’s police officers have the flexibility they need to engage the immigrant communities in their crime-fighting initiatives without projecting a constant threat of deportation.
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II. THE ADMINISTRATION ATTACKS SO-CALLED “SANCTUARY CITIES” AND TARGETS THE CITY OF CHICAGO 28. The City’s Welcoming City policies are sound. In fact, as one study found,
“crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties . . . controlling for population characteristics.”3 Indeed, as a broad coalition of police chiefs explained recently, “build[ing] trusting and supportive relations with immigrant communities . . . is essential to reducing crime and helping victims.”4
29. The idea that policies like Chicago’s encourage or facilitate crime is simply a “[m]yth”: “[S]tudies have found no support for the idea that immigrants are responsible for more crime” or that “sanctuary policies lead to increased crime.”5
30. Despite the soundness of Chicago’s policies—and despite the City’s inherent right to decide its own law enforcement priorities and strategies—the Trump Administration has singled out Chicago and other so-called sanctuary jurisdictions for criticism. In his first week in office, President Trump issued Executive Order 13768, which threatened to deny federal grants and take enforcement actions against such jurisdictions. Purporting to “inform the public regarding the public safety threats associated with sanctuary jurisdictions,” President Trump ordered DHS to publish weekly lists of any municipalities that refused to comply with detainer requests, together with lists of any undocumented immigrants arrested—but not necessarily convicted—for any non-immigration offenses.6 This executive order was later enjoined in large
3 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on Crime and the Economy 6 (2017), http://tinyurl.com/y75lsykd (emphasis added). 4 Press Release, Major Cities Chiefs Ass’n, U.S. Mayors, Police Chiefs Concerned with Sanctuary Cities Executive Order (Jan. 25, 2017), http://tinyurl.com/y8zqhypw. 5 Benjamin Gonzalez et al., The Politics of Refuge: Sanctuary Cities, Crime, and Undocumented Immigration, 53 Urb. Aff. Rev. (forthcoming 2017) (manuscript at 9-10, 18-24), http://tinyurl.com/y8hb9fnc. 6 See Alan Gomez, Trump Pressures ‘Sanctuary Cities’ That Won’t Hold Undocumented Immigrants, USA Today (Mar. 20, 2017, 6:14 PM ET), http://tinyurl.com/yctkoj9e.
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part by a federal court for violating numerous provisions of the Constitution. See County of
Santa Clara, 2017 WL 1459081, at *21-*29.
31. Just last month, President Trump spoke of “predators and criminal aliens who
poison our communities with drugs and prey on innocent young people,” avowing that these
“animals” “will find no safe haven anywhere in our country.”7 He added: “[T]hey’re not being
protected any longer, folks. And that is why my administration is launching a nationwide
crackdown on sanctuary cities.”8
32. Attorney General Sessions, without any factual basis, has also labeled sanctuary
jurisdictions a “clear and ongoing threat to public safety.”9 He recently announced, for instance,
that “‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws
and protect illegal aliens who have committed crimes”; he even suggested that they
“encourage . . . human trafficking.”10 And he has insisted that “cities with these policies have
more violent crime on average than those that don’t.”11
33. The Administration’s rhetoric is divorced from reality. As explained above, the
City’s policies are a sound approach to reducing crime, building trust with immigrant
7 See Maya Oppenheim, Donald Trump Brands Illegal Immigrant Gang Members ‘Animals’ Who ‘Slice and Dice’ Young Beautiful Girls, Indep. (July 26, 2017), http://tinyurl.com/y986sguu. 8 Id.; see also Pete Williams, Attorney General Sessions Raises Stakes for Sanctuary Cities, NBC News (July 25, 2017, 8:49 PM ET), http://tinyurl.com/yb3rzza8 (President Trump declaring that cities should be sanctuaries “for law-abiding Americans,” “not for criminals and gang members that we want the hell out of our country”). 9 Press Release, U.S. Dep’t of Justice, Statement by Attorney General Jeff Sessions on the U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (Mar. 20, 2017), http://tinyurl.com/ybrrnf8g. 10 See Michelle Mark, The Trump Administration Just Toughened Its Crackdown on ‘Sanctuary Cities,’ Bus. Insider (July 25, 2017, 6:42 PM), http://tinyurl.com/yb29dpob. 11 See Michelle Ye Hee Lee, Attorney General Jeff Sessions’s Claim That ‘Criminals Take Notice’ of Cities with Sanctuary Policies, Wash. Post (July 17, 2017), http://tinyurl.com/ycwho7u5; see also Press Release, Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy (quoting Attorney General Sessions as saying that sanctuary policies “put the lives and well-being of their residents at risk” and “give sanctuary to criminals, not to law-abiding Americans”).
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communities, and enhancing cooperation with law enforcement. Indeed, the authors of the very study cited by Attorney General Sessions have squarely rejected his position, saying he misrepresented their work.12
34. Meanwhile, Congress has also considered legislation that would penalize cities for seeking to set their own law enforcement priorities. See Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015) (proposing funding cuts for any sanctuary jurisdiction that violates Section 1373 or “prohibits any government entity or official from complying with a detainer”). Notably, however, Congress has never passed any such legislation authorizing the executive branch to impose any penalty on local jurisdictions based on their refusal to comply with detainer or other immigration enforcement requests. III. THE ADMINISTRATION SEEKS TO USE CONDITIONS ON THE BYRNE JAG
PROGRAM, A CRITICAL SOURCE OF FUNDS FOR CHICAGO, TO DICTATE CITY POLICING STRATEGY 35. With Congress having declined to authorize the executive branch to override Welcoming City-style policies, and courts having blocked the executive branch’s effort to do so through executive order, the Trump Administration has sought to expand its limited role in administering an existing congressional program, the Byrne JAG program, in an attempt to pressure cities and other local governments to abandon their policies. 36. Congress established the Byrne JAG program in 2005 to serve as the primary source of federal criminal justice funding for States and localities. The goal of the program is to allow State and local governments the “flexibility to spend money for programs that work for
12 See Miriam Valverde, Jeff Sessions Cites Study on Sanctuary Cities, Researchers Say He Misrepresented It, PolitiFact (July 24, 2017, 10:35 AM), http://tinyurl.com/y7ohqtz6; see also Loren Collingwood & Benjamin Gonzalez-O’Brien, Jeff Sessions Used Our Research to Claim That Sanctuary Cities Have More Crime. He’s Wrong, Wash. Post (July 14, 2017), http://tinyurl.com/y8rwvwbz (objecting that author’s “findings have been so misrepresented” by the Justice Department).
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them rather than to impose a ‘one size fits all’ solution” for local policing. See H.R. Rep. No. 109-233, at 89 (2005).13
37. To that end, the Byrne JAG is structured as a formula grant, awarding funds to all eligible grantees according to a prescribed formula. See 42 U.S.C. § 3755(d)(2)(A) (providing that the Attorney General “shall allocate to each unit of local government” funds consistent with the established formula). The Byrne JAG distribution formula for States is a function of population and violent crime. See id. § 3755(a). The formula for local governments, in turn, is a function of the State’s allocation and the ratio of violent crime in the locality to violent crime in the State. See id. § 3755(d).
38. Unlike discretionary grants, which agencies award on a competitive basis subject to agency discretion, “formula grants . . . are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). States and local governments are entitled to their share of the formula allocation as long as their proposed programs meet at least one of eight broadly defined goals, see 42 U.S.C. § 3751(a)(1)(A)-(H) (listing eligible programs ranging from general law enforcement to technology to mental health), and their applications contain a series of statutorily required certifications and attestations. See id. § 3752(a).
39. The statute nowhere authorizes the Department to create new substantive conditions on grant funds. Indeed, doing so would upend Congress’s formula approach for distributing funds based on population and violent crime, instead allocating grants using criteria invented by the Department. See Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1364 (D.C. Cir. 1990) (“Where Congress prescribes the form in which an agency may exercise its 13 The Byrne JAG program was created in the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), which in turn amended the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197.
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authority, . . . we cannot elevate the goals of an agency’s action, however reasonable, over that prescribed form.”).
40. Chicago has received Byrne JAG funds since 2005, the year the program began, and every year since. In FY 2016, Chicago received $2.33 million through the Byrne JAG program.
41. Chicago has used Byrne JAG funds to support projects ranging from critical law enforcement equipment and overtime to community policing outreach and engagement. Since FY 2005, for instance, Chicago has spent approximately $33 million in Byrne JAG funds to buy nearly 1,000 police vehicles. Several of those projects have extended across multiple grant years, including the Force for Good program, which began in 2011 and helps not-for-profit organizations meet community needs. Recognizing that creating safe neighborhoods is impossible unless government and communities work together, the Force for Good program provides capacity-building support to over 80 not-for-profit organizations that operate in neighborhoods experiencing high rates of violent crime in order to help improve their ability to provide services such as emergency shelter, food, and clothing; youth mentoring and structured activities in safe places; job training and placement; conflict resolution; and activities to strengthen community cohesion and resilience. Without Byrne JAG funds, Chicago would have to shut down some or all of these programs, change their staffing, scope, or goals, or else divert funds from other policing objectives to sustain them.
42. Additionally, eleven other localities depend on Chicago’s Byrne JAG application for the funds they receive through the program each year. Because Chicago’s costs of preventing and investigating violent crimes far outstrip those of the surrounding jurisdictions—including those of Cook County, in which it sits—42 U.S.C. § 3755(d)(4) obligates Chicago to file a Byrne
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JAG application on behalf of not only itself but also those other, neighboring communities. Accordingly, each year Cook County, the Village of Bellwood, the City of Calumet, the City of Chicago Heights, the Town of Cicero, the Village of Dolton, the City of Evanston, the City of Harvey, the Village of Maywood, the Village of Riverdale, and the Village of Skokie rely on Chicago’s application to receive their own Byrne JAG funds.
43. Until now, the Department has never questioned Chicago’s ability to achieve the programmatic goals for Byrne JAG funds because of the City’s approach to improving law enforcement through respect for and collaboration with immigrant communities.
A. THE DEPARTMENT OF JUSTICE REQUIRES CHICAGO TO CERTIFY COMPLIANCE WITH SECTION 1373 AS A CONDITION OF RECEIVING BYRNE JAG FUNDING
44. For over a decade, the Department administered the Byrne JAG program as Congress intended: funding critical local law enforcement initiatives without once seeking to leverage that funding to conscript local agencies to enforce federal immigration law. But that changed in late 2016 when, for the first time, DOJ required grantees to “undertake a review to validate [their] compliance with 8 U.S.C. § 1373” as a condition of receiving FY 2016 Byrne JAG funds.
45. On April 21, 2017, the Department sent letters to Chicago and eight other jurisdictions seeking submission of “documentation to [the Department’s Office of Justice Programs (“OJP”)] that validates that your jurisdiction is in compliance with 8 U.S.C. § 1373.” The letter indicated that the “documentation must be accompanied by an official legal opinion from counsel that adequately supports the validation and must be submitted to OJP no later than June 30, 2017.”14
14 See Letter from Alan R. Hanson, Acting Assistant Attorney Gen., U.S. Dep’t of Justice, to Eddie T. Johnson, Superintendent of Police, Chi. Police Dep’t (Apr. 21, 2017), https://tinyurl.com/y7t4mxxy.
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46. Section 1373, the statute for which DOJ sought certification, prohibits state and local entities from “prohibit[ing], or in any way restrict[ing]” their entities and officials from “sending,” “requesting,” “receiving,” “maintaining,” or “requesting” citizenship or immigration status information from or to federal immigration enforcement authorities.
47. Section 1373 imposes no affirmative obligation on state or local entities to collect immigration status information; does not require state or local entities to take any specific actions upon receiving immigration status information absent a request for that information; does not address detainer requests or release-date notification requests; and does not require state or local entities to act in a manner inconsistent with the United States Constitution or other federal law.
48. The Byrne JAG authorizing statute requires a “certification” that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” 42 U.S.C. § 3752(a)(5)(D). OJP indicated that it considers “all other applicable Federal laws” to encompass Section 1373.
49. Chicago replied to the Department’s letter on June 30, 2017, explaining how and why it complies with Section 1373. See Memorandum from Edward Siskel, Corporation Counsel, City of Chicago, to Tracey Trautman, Acting Director, Bureau of Justice Assistance, Office of Justice Programs, U.S. Dep’t of Justice (June 30, 2017) (attached as Ex. A).
50. Chicago’s letter explained that the City, as a general rule, does not collect citizenship or immigration status information from its residents. Both the Welcoming City Ordinance and Chicago Police Department policy bar the City from doing so. See Chicago Municipal Code § 2-173-020; Chicago Police Department Special Order S06-14-03. Chicago therefore does not “restrict” or “prohibit” its employees from taking any actions with regard to
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information covered by this non-collection policy: The City cannot prohibit or restrict the sharing of information it does not possess. See Ex. A at 2-5.
51. The letter further explained that when the City’s officers or agents do happen to possess citizenship or immigration status information, the Welcoming City Ordinance expressly permits them to share this information with federal immigration enforcement officials. Although the Ordinance prohibits disclosure of citizenship or immigration status information in response to requests from private parties, it expressly permits such disclosure as “provided under applicable federal law.” One such “applicable federal law” is Section 1373. The Welcoming City Ordinance thus does not restrict city officers and employees from responding to requests from federal immigration enforcement officials. See Ex. A. at 5-6.
52. A few days after receiving certifications from Chicago and the other targeted jurisdictions, the Department issued a press release suggesting that some jurisdictions’ certifications might be found insufficient: “It is not enough to assert compliance, the jurisdictions must actually be in compliance.” The press release further indicated that the Department was “in the process of reviewing” the certifications and planned to “examine these claims carefully.” Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.
53. Despite generally expressing skepticism about the certifications of some unspecified jurisdictions and even though the deadline to submit Byrne JAG applications for FY 2017 is less than a month away, the Department has not communicated any particular concerns to Chicago or, on information and belief, to any of the other eight jurisdictions.
54. The FY 2017 grant application will require Chicago to again certify compliance with Section 1373—but this time, it must do so after DOJ purports to impose new requirements
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that reach well beyond the statute, discussed below, and under a cloud of uncertainty created by DOJ’s increasingly aggressive positions. Furthermore, the FY 2017 application requires certifications by both Chicago’s chief legal officer and its chief executive. Although Chicago is confident that it complies with Section 1373 and has certified as such, DOJ’s public statements concerning the Section 1373 certifications it has received to date make it unclear whether DOJ will agree that Chicago’s existing certification is satisfactory under DOJ’s interpretation of the law.
B. THE DEPARTMENT OF JUSTICE ANNOUNCES TWO ADDITIONAL UNLAWFUL CONDITIONS FOR THE FY 2017 BYRNE JAG PROGRAM
55. In late July 2017, shortly before the Byrne JAG application for FY 2017 was set to go online, the Department suddenly announced significant changes to the Byrne JAG application process in a two-paragraph press release and accompanying press “backgrounder” document. See Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017), https://tinyurl.com/y9ttqhsl (attached as Ex. B); U.S. Dep’t of Justice, Backgrounder on Grant Requirements, https://tinyurl.com/ycfgbgl4 (attached as Ex. C).
56. These changes, announced with virtually no analysis or explanation and no opportunity for public notice and comment, apply to the FY 2017 grant application, which is due on September 5, 2017. See U.S. Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 Local Solicitation (2017), https://tinyurl.com/ya535xua (attached as Ex. D).
57. Both changes would countermand the Welcoming City Ordinance and require a reordering of law enforcement practice in Chicago to accommodate a major new role for federal immigration enforcement.
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58. The “notice” condition: First, the Department will require grant applicants to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.” Ex. D at 30. This policy directly conflicts with the City’s longstanding Welcoming City Ordinance (Section 2-173-042(a), (b)(1)(C)), would effectively require compliance with detainer requests even in the absence of any probable cause, and would sow fear and mistrust as between immigrant communities and law enforcement.
59. The “access” condition: Second, the Department will require grant applicants to “permit personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States.” Ex. D at 30. The Department has not defined “correctional” or “detention” facility,15 but the requirement appears to mandate that federal immigration agents be given unprecedented and unfettered access to local law enforcement facilities and to any person being held there. This policy directly conflicts with the City’s longstanding Welcoming City Ordinance (Section 2-173-042(b)(1)(A)-(B)), would interfere with the administration of local police stations and lockups, including the investigations of criminal activity that routinely take place there, and would sow fear and mistrust as between immigrant communities and law enforcement.
15 As explained elsewhere, Chicago operates only temporary “lockup” facilities, in which individuals are briefly detained prior to release or their appearances in Cook County court for probable cause proceedings. It is not at all clear whether these temporary facilities are “detention facilities” within the meaning of this condition. Nor is it clear whether Chicago can comply with this condition without impeding the timely and orderly administration of probable cause hearings in the Cook County courts. Timely and orderly administration of such hearings is necessary as a matter of both constitutional law and public safety.
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60. The City of Chicago does not itself operate jails or long-term detention facilities. The City detains arrestees in 18 temporary police “lockup” facilities, used for immediate postarrest holding and processing, as well as post-arrest investigation. Arrestees not released on their own recognizance generally are transported by the Chicago Police Department the next morning to the Circuit Court of Cook County for probable cause proceedings or to Cook County detention facilities. Thus, as a matter of practice and procedure, the City itself infrequently detains individuals for more than 24 hours.
61. Moreover, in compliance with the Supreme Court’s ruling in County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), Chicago Police Department regulations require that individuals arrested without a warrant be released or transferred to Cook County court “without unnecessary delay,” but “[u]nder no circumstances . . . any later than 48 hours from the time of arrest.” Chicago Police Department General Order G06-01 § II(C).
62. These regulations are also informed by Chicago’s obligations under state law. The Illinois Code of Criminal Procedure requires that any arrested person in lockup be taken “without unnecessary delay” to a judge. Ill. Code Crim. Proc. § 109-1(a). The Illinois Administrative Code additionally specifies that “[t]he maximum period of detention in a jail should not normally exceed 48 hours” and that “[n]o minor shall be detained in a municipal lockup for more than six hours.” Ill. Admin. Code §§ 720.30, 720.150.
63. As a practical matter, then, Chicago can comply with the Department’s new notice condition and provide DHS with 48 hours of lead time prior to arrestees’ release only if the City detains arrestees for longer than they would otherwise be held in the City’s custody, which implicates constitutional, state-law, fiscal, logistical, and other legal concerns. In particular, the prolonged detention caused by the notification requirement would force the City to
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potentially violate both arrestees’ Fourth Amendment rights to be free of unreasonable seizures and state law, putting Chicago at risk of liability under the civil rights laws.
64. The Department imposed these new notice and access conditions without any explanation, reasoning, or opportunity for exchange with local governments or law enforcement. The Department’s press release makes perfunctory mention of community safety and criminal behavior. See Ex. B. But it fails to explain how it arrived at these new conditions or what alternatives it may have considered. The press release is silent as to the purposes of the Byrne JAG program and in what ways the newly imposed notice or access conditions (or for that matter the Section 1373 condition) are related to, let alone serve to advance, the interests of the Byrne JAG program. And it fails to provide local law enforcement any guidance as to how the conditions will operate in practice.
65. In fact, these conditions have no legal basis. The Department has not pointed to any statutory authority for imposing these conditions on Byrne JAG applicants. To be sure, the authorizing legislation requires program applicants to certify that they will “comply with all . . . applicable Federal laws.” 42 U.S.C. § 3752(a)(5)(D). But even stretching that provision to cover Section 1373—a construction the City has never endorsed as a lawful interpretation, see Ex. A at 1 n.1—the Department has made no effort to identify any federal law requiring “at least 48 hours’ advance notice” before the City releases an alien in its custody, or any law requiring local police departments to allow DHS officials to access detention facilities.
66. These conditions also represent a sharp break with core constitutional principles. In our constitutional order, “the National Government possesses only limited powers; the States and the people retain the remainder.” National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 533 (2012). Federalism “secures to citizens the liberties that derive from the diffusion of
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sovereign power.” Id. at 536 (quoting New York v. United States, 505 U.S. 144, 181 (1992)). Because of its intimate connection to liberty, our federalist design is protected by constitutional limits on undue federal encroachment on state and local autonomy. And separation of powers principles also operate as independent restraints on cooperative federalism arrangements like the Byrne JAG program. The Constitution gives the spending power to Congress, not the Executive Branch. Federal agencies therefore may not invent funding conditions out of whole cloth. IV. THE DEPARTMENT OF JUSTICE’S UNLAWFUL NEW CONDITIONS WILL
INJURE CHICAGO, FORCING THE CITY TO CHOOSE BETWEEN VITAL LAW ENFORCEMENT FUNDING AND ITS CONSTITUTIONAL RIGHTS 67. The Administration’s unlawful actions pose a threat of imminent harm to Chicago. Its Byrne JAG application for FY 2017 is due in just 29 days—on September 5, 2017. For over ten years, the City has routinely applied for and received those funds, which have gone toward police vehicle purchases, law enforcement equipment, and community crime-prevention programs. This year, however, the Department’s actions loom over the City’s decisionmaking process. 68. After demanding that Chicago certify and justify its compliance with Section 1373, the Department cryptically announced that “[s]ome” jurisdictions “potentially violate” Section 1373, without indicating which certifications it found lacking and without identifying any particular defect.16 This uncertainty has clouded the City’s ability to apply for critical law enforcement funds that it has relied upon for over a decade. 69. The two new conditions that the Department just announced are equally if not more harmful. The notice condition would require the City to detain individuals longer than it otherwise would, potentially violating the individuals’ Fourth Amendment rights and state law
16 Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.
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and thereby expose the City to liability; the access condition would demand that the City open its lockup facilities to federal officials without regard to local detention needs.
70. Just as fundamentally, complying with the new conditions would undermine public safety in Chicago. The Welcoming City Ordinance assists effective policing by building trust between law enforcement officers and the immigrant community. Conversely, policing suffers when members of that community, whatever their immigration status, do not feel free to report crimes, assist in investigations, or testify as witnesses. The Department’s insistence that Chicago give immigration enforcement agents on-demand access to its detention facilities in order to investigate potential civil immigration violations, and that Chicago detain individuals solely so that they can be investigated for possible civil immigration violations, would undermine crucial public trust, cut local law enforcement efforts off at the knees, and make everyone in Chicago less safe.
71. The Department has thus put Chicago to an impossible choice: sacrifice its sovereignty and its residents’ safety by acceding to unlawful funding demands that will undermine community-officer trust and cooperation built over decades; or forfeit crucial monies on which it has relied for more than a decade to fund essential policing operations. And if the City chooses the latter, the City will not be the only jurisdiction to lose out on critical funding. The eleven neighboring jurisdictions that depend on Chicago’s Byrne JAG application for their own Byrne JAG funding will lose their funding as well.
72. Worse still, the Department has required Chicago to make its decision under extreme time pressure. Chicago’s FY 2017 application is due in just 29 days.
73. As that deadline swiftly approaches, Chicago faces the prospect of a severe federal incursion on its sovereignty. Sovereignty implies self-determination—a government’s
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ability to select and implement policies of its own choosing. But in a little under a month, Chicago will be denied that most basic right: Instead of focusing (as it always has) on the best interests of its residents and officers, Chicago will soon be required to revise basic law enforcement policy decisions in order to suit the demands of the Department. When a municipality is forced to desert its concerted policy choices under the influence of the federal government’s coercive power, it suffers a deep and irreparable injury to its sovereignty.
74. Moreover, whichever decision Chicago ultimately makes, its residents and police force will be immediately and irreparably harmed. If Chicago submits to the Department’s demands, it will forfeit decades’ worth of trust and goodwill that its police force has built in the communities it serves. And as those decades of experience show, that kind of trust, once lost, is lost forever. Alternatively, if Chicago asserts its right to determine its own policy and refuses to certify compliance with the Department’s new and unlawful conditions, it (and the eleven other jurisdictions who depend on Chicago’s application for their Byrne JAG funds) will forever forfeit the FY 2017 Byrne JAG grant monies—monies that are critical to Chicago’s community policing operation and that purchase essential and life-saving equipment for Chicago and its neighboring jurisdictions. Indeed, the FY 2017 Byrne JAG application itself makes clear that if Chicago refuses the federal government’s demands and thus declines to submit an application by September 5, it will miss out on that year’s funds. Ex. D at 28 (explaining that untimely applications will not be considered). Moreover, the Byrne JAG statue’s grant formula indicates that those forfeited funds will be divvied up and parceled out to other jurisdictions around the country, impossible for Chicago and its neighboring communities to later reclaim. See 42 U.S.C. § 3755 (providing the formula for dividing each year’s total grant funds). And even if Chicago and its neighbors could later claw back those funds, the damage would have already been done in
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the months or years their police forces and residents will have spent without access to crucial equipment and services.
75. The Department cannot force Chicago to choose between its right to make smart policing decisions for itself as an exercise of municipal sovereignty and its right to receive formula grant funds that Congress has allocated to it.
COUNT ONE: ULTRA VIRES 76. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 77. The Department of Justice may exercise only authority conferred by statute. See City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013) (federal agencies’ “power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires”). 78. The Department lacks statutory authority to condition Byrne JAG funds on the new notice and access conditions. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute. 79. The text of the Byrne JAG statute recognizes no authority for DOJ to impose additional substantive grant conditions on Byrne JAG funds. In fact, Congress has repeatedly demonstrated its ability (when it so desires) to expressly confer agency discretion to add substantive conditions to federal grants. In the same statute that includes the Byrne JAG grant, the Omnibus Crime Control and Safe Streets Act of 1968, Congress created a different grant program that expressly authorized administering agencies to impose reasonable grant conditions. See 42 U.S.C. § 3796gg-1(e)(3) (Attorney General may “impose reasonable conditions on grant awards . . . .”); see also Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005) (courts will not “lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply” especially where Congress has done so in the “same statute”). And
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Congress has expressly conferred such authority in other federal grant programs. See, e.g., 47 U.S.C. § 1204(b)(2) (Under Secretary of Commerce can “establish such conditions . . . as may be appropriate to ensure the efficiency and integrity of the grant program”); 25 U.S.C. § 1652(b) (similar); 42 U.S.C. § 2850-2(b) (similar).
80. It did not do so with the Byrne JAG program. Rather, the Byrne JAG statute expressly gives the Attorney General a limited ministerial authority to specify the “form” of the application, 42 U.S.C. § 3752(a) (requiring jurisdictions to submit an application containing the enumerated components “in such form as the Attorney General may require”), but omits any authorization to add additional substantive conditions to that application. Congress’s decision to confer discretion over form, but not substance, should be respected. Russello v. United States, 464 U.S. 16, 23-24 (1983) (“Congress acts intentionally and purposely in the disparate inclusion or exclusion of statutory text.”).
81. The Department’s purported authority to promulgate the new notice and access conditions is also contradicted by the formula-grant structure of the Byrne JAG program. Byrne JAG funds are distributed across States and localities based on their population and relative levels of violent crime. See 42 U.S.C. § 3755(d)(2)(A). The formula-based approach makes States and localities eligible to receive their formula-specified share as long as they comply with the grant’s administrative requirements and propose using funds in at least one of eight broadly defined programmatic areas. See 42 U.S.C. § 3751(a)(1)(A)-(H) (noting that grants can be used for “any one or more of the following programs” and then listing areas ranging from “[l]aw enforcement” to “[d]rug treatment” to “[m]ental health”); id. § 3752(a)(6)(B) (requiring applications to “include a description of how the State will allocate funding within and among [those uses]”). If DOJ had the authority to impose new substantive conditions on all grantees,
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the effect would be to contradict Congress’s formula and reallocate funds to jurisdictions that
adopted DOJ’s preferred policy.
82. It would also contradict the fundamental purpose of the JAG program: to give
States and local governments the “flexibility to spend money for programs that work for them
rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89.
83. Moreover, the Department also lacks statutory authority to condition Byrne JAG
funds on compliance with Section 1373. The Byrne JAG statute’s requirement that grantees
comply with “all applicable Federal laws” does not confer authority on DOJ to condition Byrne
JAG funding on Section 1373 compliance, because Section 1373 is not an “applicable” law here.
The phrase “all applicable Federal laws” in the Byrne JAG statute refers to the host of laws that regulate the conduct of federal grant recipients as grant recipients.17 It does not refer to every
section of the U.S. Code that could possibly apply to a state or local government. Section 1373
does not regulate grantees as grantees nor do its terms mention federal grants or funds.
84. As a direct and proximate result of these unlawful conditions, Chicago will be
forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and
shut down the programs they support.
85. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff is entitled to a
declaration that Attorney General is without authority to impose the notice, access, and Section
17 See, e.g., 41 U.S.C. § 4712(a)(1) (“An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body . . . information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds . . . .”); 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”).
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1373 conditions for FY 2017 Byrne JAG funds, an order that those conditions be set aside, and an injunction preventing those conditions from going into effect.
COUNT TWO: SEPARATION OF POWERS 86. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 87. The Constitution vests the spending power in Congress, not the President. U.S. Const. art. I § 8, cl. 1; see Clinton v. City of New York, 524 U.S. 417, 438 (1998) (line-item veto violates constitutional separation of powers principles); County of Santa Clara, 2017 WL 1459081, at *21-*22. 88. The President “does not have unilateral authority to refuse to spend . . . funds” that have already been appropriated by Congress “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also Train v. City of New York, 420 U.S. 35, 44 (1975) (the Executive lacked discretion to spend less than the full amount of funds authorized by Congress under the Federal Water Pollution Contract Act Amendments of 1972). 89. Imposing a new condition on a federal grant program amounts to refusing to spend money appropriated by Congress unless that condition is satisfied. 90. The notice condition was not imposed by Congress, but rather by the Department in issuing the FY 2017 Byrne JAG application. Therefore, the notice condition amounts to improper usurpation of Congress’s spending power by the Executive Branch. 91. The access condition was not imposed by Congress, but rather by the Department in issuing the FY 2017 Byrne JAG application. Therefore, the access condition amounts to improper usurpation of Congress’s spending power by the Executive Branch. 92. The Section 1373 condition was not imposed by Congress, but rather by the Department in issuing its Office of Justice Programs guidance and the FY 2016 and FY 2017
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Byrne JAG applications. Therefore, the Section 1373 condition amounts to improper usurpation of Congress’s spending power by the Executive Branch.
93. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the notice, access, and Section 1373 conditions for the FY 2017 Byrne JAG violate the constitutional principle of separation of powers and impermissibly arrogate to the executive branch power that is reserved to the legislative branch, as well as an injunction preventing those conditions from going into effect.
COUNT THREE: SPENDING CLAUSE 94. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 95. In any event, Congress could not have authorized the immigration conditions here because they do not satisfy the additional requirements of the Spending Clause. 96. Accordingly, those requirements must be enjoined. National Fed’n of Indep. Bus., 567 U.S. at 585 (to “fully remed[y]” a Spending Clause violation, the federal government must be barred from withholding “funds for failure to comply with the [unconstitutional] requirements”). A. The Department’s Three Immigration-Related Conditions Are Not Germane
To The Byrne JAG Funds It Has Received For Over A Decade 97. Conditions on spending grants must be “relevant to [the] federal interest” in the particular grant program. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 295 (1958); accord South Dakota v. Dole, 483 U.S. 203, 207-208 & n.3 (1987) (conditions must be “reasonably related,” or “germane[],” to the particular program). This nexus requirement ensures that the federal government does not use spending conditions to regulate state and local governments beyond the contours of the spending program itself. See also N. Ill. Chapter of Associated
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Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004, 1006 (7th Cir. 2005) (“Conditions on spending may become regulation if they affect conduct other than the financed project.”).
98. The notice and access conditions are not relevant to the federal interest in the Byrne JAG funds Chicago receives. Chicago uses those funds for the purchase of replacement vehicles for worn-out police patrol cars, funding the Force for Good program, and law enforcement equipment. Information concerning when detainees will be released from lockup and policies respecting access for federal immigration agents bear no relevance to the acquisition of safe and effective patrol cars, community programs, or other uses to which Chicago puts Byrne JAG funds.
99. The notice and access conditions also are not relevant to the federal interest in the Byrne JAG program more generally. The central objectives of the Byrne JAG program are (1) to ensure that funds are distributed across the country in a way that accounts for population and violent crime, see 42 U.S.C. § 3755, and (2) to “give State and local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution,” H.R. Rep. No. 109-233, at 89. The conditions do not support those goals; indeed, they undermine them. The conditions virtually guarantee that cities across the country that have used the local flexibility promoted by the Byrne JAG program to innovate policeimmigrant relations will not receive their share of Byrne JAG formula funds. And, by their very nature, the broadly applicable, locally indifferent conditions contradict Congress’s express rejection of a “one size fits all” approach to federal law enforcement funding. Conditions that undermine Congress’s goals cannot satisfy the constitutional nexus requirement.
100. The Section 1373 condition is not relevant to the federal interest in the Byrne JAG funds Chicago receives. Information sharing with federal officials regarding an individual’s
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immigration status bears no connection to the replacement vehicles for worn-out police patrol cars, support for the Force for Good program, or the acquisition of new law enforcement equipment.
101. The Section 1373 condition also is not relevant to the federal interest in the Byrne JAG program more generally. As with the other conditions, it actively undermines Congress’s goals of dispersing funds across the country, targeting funds to combat violent crime, and respecting local judgment in setting law enforcement strategy. The Section 1373 condition would in effect rewrite Congress’s formula and mandate a “one size fits all” approach to local policies regarding immigration status.
102. All three immigration-related conditions are therefore not germane to the Byrne JAG funding Chicago receives or to the Byrne JAG program generally.
B. The Department’s Notice And Access Conditions Would Impermissibly Induce Unconstitutional Activities
103. The Spending Clause additionally prohibits the federal government from imposing spending conditions in order to “induce the States to engage in activities that would themselves be unconstitutional.” Dole, 483 U.S. at 210.
104. The notice and access conditions require Chicago to inject unreasonable delays into its existing booking, charging, and release processes in violation of the Fourth Amendment. With regard to the notice condition in particular, providing DHS with 48 hours’ advance notice of an arrestee’s release from Chicago’s custody would require the City to presumptively violate the Fourth Amendment every time it arrested a possible non-citizen without a warrant; the only way Chicago could provide the requested notice is by holding those arrestees longer than McLaughlin’s presumptively reasonable 48 hours. See 500 U.S. at 56. Holding an individual for longer than 48 hours without probable cause is only reasonable where the government
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“demonstrate[s] the existence of an emergency or other extraordinary circumstance” justifying the delay. Lopez v. City of Chicago, 464 F.3d 711, 714 (7th Cir. 2006). Extended detention in order to provide release notifications to DHS qualifies as neither “extraordinary” nor an “emergency.” See Arizona v. United States, 567 U.S. 387, 413 (2012) (“[D]elay[ing] the release of some detainees for no reason other than to verify their immigration status . . . would raise constitutional concerns.”).
105. Independent of McLaughlin’s 48-hour presumption, the notice condition would require detention beyond the period authorized by the Fourth Amendment in many instances. A warrantless arrest initially reasonable for Fourth Amendment purposes becomes unreasonable once the task that occasioned the original seizure is complete. See Illinois v. Caballes, 543 U.S. 405, 407 (2005); United States v. Jacobsen, 466 U.S. 109, 124 (1984) (“[A] seizure lawful at its inception can nevertheless violate the Fourth Amendment.”). Detaining an arrestee beyond the period justified by the probable cause supporting the initial arrest requires independent probable cause to justify continued seizure. See Morales, 793 F.3d at 218; Miranda-Olivares, 2014 WL 1414305, at *9.
106. Nearly all of Chicago’s arrestees who are released from the City’s custody are released within 24 hours. Holding arrestees for 48 hours in order to comply with the notice condition would require Chicago to hold individuals longer than required by the fact of their initial arrest, and would thus require independent probable cause.
107. Probable cause to detain any person must be measured on an individual basis. Plainly, Chicago would not have probable cause to detain every known or suspected non-citizen for the 48-hour period DOJ seeks. Yet the notice condition is not limited to situations where there exists probable cause sufficient to extend the detention. The notice condition states only
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that jurisdictions receiving Byrne JAG funding are required to hold suspected non-citizens “when DHS requests such notice.” Ex. D at 30. Complying with the notice condition any time DHS “requests” such notice without regard to probable cause exists to justify continued detention would violate the Fourth Amendment.
108. The notice condition seeks to require grant recipients to engage in unconstitutional activity and is therefore impermissible under the Spending Clause.
109. The access condition would similarly require Chicago to hold individuals longer than necessitated by the initial probable cause finding supporting their arrests in at least some circumstances. Permitting DHS to question suspected non-citizens in Chicago’s custody would inevitably require an extension of the detention period beyond that justified by the fact of arrest; at least some of those custodial interviews would interfere with Chicago’s existing booking and release process.
110. Any extension to the detention period constitutes a subsequent seizure that must be independently supported by probable cause. See Morales, 793 F.3d at 218; MirandaOlivares, 2014 WL 1414305, at *9. Unless Chicago has independent probable cause sufficient to justify continued detention, it cannot extend the period of arrest to allow such questioning. See Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015); Arizona, 567 U.S. at 387; Muehler v. Mena, 544 U.S. 93, 101 (2005).
111. The access condition is not limited to those situations in which there exists probable cause sufficient to extend the detention. Instead, it requires Chicago to permit DHS personnel to access “any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien)” without articulating a limiting principle. Ex. D at 30.
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112. The access condition seeks to require grant recipients to engage in unconstitutional activity and is therefore impermissible under the Spending Clause.
C. The Department’s Three Immigration-Related Conditions Are Unconstitutionally Ambiguous
113. Federal restrictions on state and local funding must also be articulated “unambiguously” so that the recipient can “voluntarily and knowingly accept[]” Congress’s terms. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981). Under Pennhurst, grant conditions are not “unambiguous[]” if the recipient “is unable to ascertain what is expected of it.” Id.; see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (“[Recipients] cannot knowingly accept conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.’” (quoting Pennhurst, 451 U.S. at 17)).
114. All three immigration-related conditions are ambiguous as to what is expected of grant recipients in Chicago’s position, particularly given Chicago’s Welcoming City Ordinance and other relevant policies and practices.
115. The notice condition is ambiguous because, as explained in detail already, it would require Chicago to engage in presumptively unconstitutional behavior. This condition forces grantees to (a) decide whether DOJ intends the condition to be read consistent with the Constitution, and assuming so, (b) decide for themselves how the condition could be complied with without raising constitutional difficulties. Requiring grantees to embark on careful constitutional analysis of federal grant conditions does not give grantees appropriate notice of what is “expected of” them.
116. The access condition is ambiguous because, as drafted, Chicago cannot discern what “detention facilities” it must permit federal agents to access. Specifically, it is not clear whether “detention facility” encompasses the holding cells operated by the Chicago Police
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Department. Nor is it clear how the City should proceed when, given the very brief nature of most detentions, it is impossible to grant ICE access to a detainee because doing so would interfere with the Police Department’s internal practices and unduly delay a detainee’s release from custody. Cf. McLaughlin, 500 U.S. at 56 (Fourth Amendment prohibits “unreasonable delay” in releasing arrestees held without a judicial determination of probable cause).
117. The Section 1373 condition is also ambiguous, and the Department’s guidance documents and other actions have only added to the confusion. For instance, the statute uses sweeping language with no discernable limiting principle—i.e., barring agencies from “prohibit[ing], or in any way restrict[ing]” the sharing, maintenance, or exchange of immigration status information. And the Department has added to the difficulties State and localities would have in discerning the scope of that bar by suggesting without explanation that Section 1373 implicates a wide range of state and local governance practices from formal laws to informal cultural norms. At other times, the Department has actively contradicted itself in a bid to interpret Section 1373. For instance, it has stated both that Section 1373 requires no affirmative action by States and local governments, U.S. Dep’t of Justice, Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373, at 1 (2016), https://tinyurl.com/y8e4j8es, and that States and local governments may need to provide affirmative instruction to employees to be in compliance, Memorandum from Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol V. Mason, Assistant Attorney Gen., Office of Justice Programs, U.S. Dep’t of Justice, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients 6 (May 31, 2016), https://tinyurl.com/y9rpwge4 (“[W]e have concerns that unless city employees were made explicitly aware that the local ordinance did not limit their
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legal authority to respond to such ICE requests, employees likely would be unaware of their legal authority to act inconsistently with the local ordinance.”).
118. Finally, many interpretations of Section 1373 would raise serious constitutional concerns. Where a grant recipient must resolve tension between the Constitution and an informal interpretation announced by an agency in a guidance document to ascertain what is expected of it, the condition cannot be characterized as unambiguous.
D. The Department’s Three Immigration-Related Conditions Are Unconstitutionally Coercive
119. The Spending Clause further prohibits grant conditions that are “so coercive as to pass the point at which ‘pressure turns into compulsion.’” Dole, 483 U.S. at 211 (citation omitted).
120. As a direct and proximate result of the notice, access, and Section 1373 conditions, Chicago is forced to either accept an unlawful and unconstitutional grant condition or forego Byrne JAG funds.
121. The loss of Byrne JAG funds would strain the Chicago Police Department’s budget resources for replacing failing and inoperable patrol cars needed to provide a public presence and respond to emergency calls, and would curtail community outreach and engagement programs, such as the Chicago Police Department’s Force for Good program.
122. All three immigration-related conditions therefore threaten financial consequences that exceed the point at which pressure turns to constitutionally impermissible compulsion.
123. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the three immigration-related conditions for the FY 2017 Byrne JAG violate the Constitution’s Spending Clause as well as an injunction preventing those conditions from going into effect.
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COUNT FOUR: COMMANDEERING 124. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 125. The Tenth Amendment prohibits the federal government from “requir[ing]” States and localities “to govern according to Congress’s instructions,” New York, 505 U.S. at 162, or “command[ing] the States’ officers . . . to administer or enforce a federal regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997). 126. Where the “whole object” of a provision of a federal statute is to “direct the functioning” of state and local governments, that provision is unconstitutional, Printz, 521 U.S. at 932, and must be enjoined, id. at 935; New York, 505 U.S. at 186-187. That description precisely fits each of the three immigration-related conditions. 127. The notice condition seeks to fundamentally reorganize the manner in which Chicago has chosen to balance its Fourth Amendment obligations against its interest in effective law enforcement. Compliance with the notice condition would require Chicago to hold detainees longer than it currently does and would, at bottom “command the States’ officers . . . to administer or enforce a federal regulatory program,” Printz, 521 U.S. at 935. 128. The notice condition therefore impermissibly commandeers local governments and cannot be validly imposed on Byrne JAG funding recipients. 129. The access condition requires a fundamental restructuring of Chicago Police Department procedures and functions in order to accommodate on-demand access to detainees by federal agents. This federalization of bedrock local government functions violates the Tenth Amendment’s anti-commandeering principle. State and local governments can define their sovereignty only “[t]hrough the structure of [their] government, and the character of those who exercise government authority.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Instituting an open-door policy for federal immigration officials to enter local facilities and interrogate local
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detainees displaces Chicago’s exercise of its fundamental police powers and compromises local political and law enforcement officials’ ability freely to direct the City’s law enforcement strategies and priorities.
130. The access condition therefore impermissibly commandeers local governments and cannot be validly imposed on Byrne JAG funding recipients.
131. Congress enacted Section 1373 on the belief that “[e]ffective immigration law enforcement requires a cooperative effort between all levels of government.” S. Rep. No. 104249, at 19 (1996). Specifically, Congress sought to ensure that “[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies” could be used to enforce federal law. Id. at 19-20. In doing so, it sought to “require [state and local officers] to provide information that belongs to the State and is available to them only in their official capacity”—in other words, to engage in unconstitutional commandeering. Printz, 521 U.S. at 932 n.17.
132. Further, Section 1373 prohibits state and local governments from engaging in a core aspect of governing: controlling the actions of their own employees. States and local governments can act “only through [their] officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001) (quoting Tennessee v. Davis, 100 U.S. 257, 263 (1879)). Thus, personnel decisions—including decisions about how personnel interact with the federal government—are “decision[s] of the most fundamental sort” for Chicago. Gregory, 501 U.S. at 460. Statutes like Section 1373—which require state officers to follow federal directives and usurp the state-level policymaking process—break the chain of accountability for state-level officers.
133. Section 1373 is therefore facially unconstitutional and cannot be validly imposed on Byrne JAG recipients as “applicable Federal law[].” 42 U.S.C. § 3752(5)(D).
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134. As a direct and proximate result of these unconstitutional conditions, Chicago will be forced to accept unlawful and unconstitutional grant conditions or forego Byrne JAG funds and shut down or materially alter the programs they support.
135. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the three immigration-related grant conditions the Department has sought to impose on FY 2017 Byrne JAG program participants violate the Tenth Amendment as well as an injunction preventing those conditions from going into effect.
COUNT FIVE: DECLARATORY JUDGMENT THAT CHICAGO COMPLIES WITH SECTION 1373
136. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 137. Chicago has certified compliance with Section 1373 and provided an accompanying legal analysis describing the basis for the City’s certification. DOJ guidance indicates that the statue does not impose an affirmative obligation on state or local entities to collect information from private individuals regarding their immigration status. See U.S. Dep’t of Justice, Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373, at 1 (2016), https://tinyurl.com/y8e4j8es (“Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information.”). Section 20 of Chicago’s Welcoming City Ordinance and Chicago Police Department Special Order S06-14-03 establish a general policy of not collecting immigration status information unless such collection is required by state or federal law, a judicial decision, or as part of anticipated litigation. Because Chicago cannot restrict the sharing of information it does not collect, the City’s policy of non-collection renders it necessarily compliant with Section 1373 for all cases covered by the non-collection policy.
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138. Where City officials or agents do incidentally come to possess immigration status information, the City has no policy restricting the sharing of such information contrary to Section 1373 because Section 30 of the Welcoming City Ordinance contains a “saving clause” that limits the disclosure of an individual’s citizenship or immigration status information “[e]xcept as otherwise provided by applicable federal law.” In the context of the Welcoming City Ordinance, “applicable federal law” includes Section 1373 to whatever extent Section 1373 and any individual federal request made pursuant to that provision is a lawful and constitutional exercise of federal authority.
139. Chicago has received no formal notification regarding the acceptability of that certification but the Department has indicated that certifications from at least some jurisdictions are likely to be rejected. See Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten Potential Sanctuary Jurisdictions (July 6, 2017), http://tinyurl.com/ybdhf7vy.
140. While Chicago is confident it complies with Section 1373, DOJ’s conduct has sown confusion and created the impression that the federal government believes otherwise, notwithstanding Chicago’s legal analysis. Chicago is reluctant to certify compliance with the Section 1373 in its FY 2017 Byrne JAG application, which is due imminently, until the Department affirms that the City’s prior certification is acceptable.
141. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that it complies with Section 1373.
COUNT SIX: ADMINISTRATIVE PROCEDURE ACT (FAILURE TO USE NOTICE AND COMMENT PROCEDURES; ARBITRARY AND CAPRICIOUS)
142. Plaintiff incorporates by reference the allegations of the preceding paragraphs.
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143. In addition to lacking statutory and constitutional authority to impose the immigration-related conditions, the conditions were adopted without using notice-and-comment procedures and are arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706.
144. DOJ’s decision to condition Byrne JAG funds on compliance with the notice, access, and Section 1373 conditions is a legislative rule that “impose[s] obligations . . . on private interests.” Associated Builders & Contractors, Inc. v. Reich, 922 F. Supp. 676, 681 (D.D.C. 1996). It is therefore subject to the APA’s requirement that legislative rules be enacted through notice and comment rulemaking procedures. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); see also 42 U.S.C. § 3754 (“The Attorney General shall issue rules to carry out this part.”). DOJ issued the Section 1373 compliance condition through a guidance document and the notice and access conditions through a press release and subsequent inclusion by fiat in the grant solicitation. Those steps do not comply with notice and comment procedures. See 5 U.S.C. § 553.
145. All three conditions are also arbitrary and capricious because DOJ failed to rely on reasoned decisionmaking and, to the extent it cited reasons at all, those reasons are contradicted by evidence. Among other things, DOJ “relied on factors which Congress has not intended it to consider,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), by, for example, evaluating grant applicants on the basis of their immigration policies rather than on their compliance with expressly enumerated statutory application requirements. See 42 U.S.C. § 3752(a)(1)-(5). It “entirely failed to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, including but not limited to the policing challenges created by alienating and inducing fear in immigrant communities. It
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“offered an explanation for its decision that runs counter to the evidence before the agency,” id., including the evidence submitted by nine jurisdictions in their Section 1373 certification letters indicating that Welcoming City-style policies promote rather than detract from effective policing. Indeed, when the Attorney General referred to one study in the press that showed that such policies lead to higher crime, the study’s own authors said he was misrepresenting their work.
146. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the three immigration-related conditions for the FY 2017 Byrne JAG funds are in violation of the APA as well as an injunction preventing those conditions from going into effect.
COUNT SEVEN: ADMINISTRATIVE PROCEDURE ACT (PAPERWORK REDUCTION ACT)
147. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 148. DOJ additionally issued the new conditions “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 149. The FY 2017 Certification of Compliance with Section § 1373 attached to the FY 2017 Byrne JAG application, see Ex. D. at 37-38, is a “collection of information” within the meaning of the Paperwork Reduction Act and implementing regulations. See 44 U.S.C. § 3502; 5 C.F.R. § 1320.3(h) (“[A] certification would likely involve the collection of ‘information’ if an agency conducted or sponsored it . . . to monitor . . . compliance with regulatory standards.”). 150. The Paperwork Reduction Act bars federal agencies, including the Department, from “conduct[ing] or sponsor[ing] a collection of information” unless that agency has provided “60-day[s] notice in the Federal Register” and “otherwise consult[ed] with members of the public and affected agencies” to, inter alia, “evaluate whether the proposed collection of
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information is necessary for the proper performance of the functions of the agency.” 44 U.S.C. §§ 3506(c)(2), 3507(a)(1); 5 C.F.R. § 1320.10.
151. The Department has not published a Paperwork Reduction Act Notice in the Federal Register relevant to the FY 2017 Certification of Compliance with Section 1373.
152. The Paperwork Reduction Act and implementing regulations further provide that that “no person shall be subject to any penalty for failing to comply with a collection of information” if the relevant collection of information does not display “a currently valid OMB control number” or if the agency “fails to inform” the person responding to the collection of information “that such person is not required to respond to the collection of information unless it displays a currently valid OMB control number.” 44 U.S.C. § 3512; 5 C.F.R. § 1320.6; see also Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001) (where agency “did not get prior approval from OMB” for an information collection covered by the Paperwork Reduction Act, agency “had no authority to enforce the information request”).
153. The protection provided by the Paperwork Reduction Act “may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.” 44 U.S.C. § 3512(b).
154. The FY 2017 Certification of Compliance with Section 1373 displays no OMB control number, and Chicago has not been informed that it is not required to submit the FY 2017 Certification of Compliance.
155. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Chicago is entitled to a declaration that it is not required to submit a FY 2017 Certification of Compliance with Section 1373 and that its failure to do so cannot the basis for denying it FY 2017 Byrne JAG funds.
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PRAYER FOR RELIEF WHEREFORE, Plaintiff prays this Court: a) Declare that all three immigration-related conditions for the FY 2017 Byrne JAG are unlawful and that Chicago complies with 8 U.S.C. § 1373; b) Enjoin the Department of Justice from enforcing the notice, access, or Section 1373 conditions for the FY 2017 Byrne JAG and retain jurisdiction to monitor the Department’s compliance with this Court’s judgment; and c) Grant such other relief as this Court may deem proper.

August 7, 2017.

Respectfully Submitted,

JAMIE S. GORELICK (pro hac vice pending) DAVID W. OGDEN (pro hac vice pending) ARI HOLTZBLATT (pro hac vice pending) ARI SAVITZKY (pro hac vice pending) MOLLY JENNINGS (pro hac vice pending) BRIDGET FAHEY* (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000

EDWARD N. SISKEL Corporation Counsel of the City of Chicago BENNA R. SOLOMON Deputy Corporation Counsel JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220

DEBO P. ADEGBILE (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800

By /s/ Andrew W. Worseck ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220 andrew.worseck@cityofchicago.org

* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP

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Case: 1:17-cv-05720 Document #: 1 Filed: 08/07/17 Page 46 of 46 PageID #:46 Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700 Attorneys for the City of Chicago
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Case: 1:17-cv-05720 Document #: 1-1 Filed: 08/07/17 Page 1 of 7 PageID #:47
Exhibit A

Case: 1:17-cv-05720 Document #: 1-1 Filed: 08/07/17 Page 2 of 7 PageID #:48

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DEPARTMENT OF LAW CITY OF CHICAGO

MEMORANDUM

TO: FROM: RE: DATE:

TRACEY TRAUTMAN Acting Director, Bureau ofJustice Assistance Office ofJustice Programs United States Department ofJustice
EDWARD SISKEL Corporation Counsel,Department ofLaw
Validation of Compliance with 8 U.S.C. § 1373 FY 2016 Byrne JAG Grant Project Number:2016-DJ-BX-0106(City ofChicago) Date ofAward:September 7,2016
June 30,2017

In response to Special Condition #52 of the FY 2016 Byrne JAG grant received by the City of Chicago ("Chicago"), and correspondence dated April 21, 2017 from Acting Assistant Attorney General Alan R. Hanson to Chicago Police Superintendent Eddie Johnson, this office has reviewed the Municipal Code of Chicago ("Municipal Code"), including Chicago's Welcoming City Ordinance("WCO"),codified at Section 2-173, as well as the general and special orders of the Chicago Police Department promulgated thereunder, to determine whether they comply with 8 U.S.C.§ 1373("Section 1373").1
This evaluation was informed by the Office of Justice Programs' July 7, 2016 guidance statement,"Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373;" and that office's subsequent October 6, 2016 guidance statement, "Additional Guidance Regarding Compliance with 8 U.S.C. § 1373."
Based on that guidance, as well as the statutory text and other relevant provisions of law, we understand that Section 1373 (1) does not impose any affirmative obligation on state or local entities to collect information from private individuals regarding their immigration status; (2) does not require that state or local entities take any specific actions upon obtaining information concerning a private individual's immigration status in the absence of an intergovernmental
1 By submitting this memorandum validating its compliance, Chicago reserves all rights, and specifically does not concede that Section 1373 constitutes "applicable federal law" within the meaning of the Edward Byrne Memorial Justice Assistance grant program's authorizing statute, 42 U.S.C.§ 3752,or that federalfunding can lawfully be conditioned on compliance with Section 1373.
1l( FORTH LASALLE STREE'P, SUITE 600, CHICAGO, ILLINOIS 60602

Case: 1:17-cv-05720 Document #: 1-1 Filed: 08/07/17 Page 3 of 7 PageID #:49
request for such information;(3) does not address any restrictions by state or local entities on cooperation with ICE regarding detainers or release date notification requests, and (4) does not require state or local entities to act in a manner inconsistent with the U.S. Constitution or federal law.
Having reviewed the applicable statute, ordinances, general and special orders of the Chicago Police Department, and Department of Justice guidance, Chicago can certify that the WCO and police department orders comply with Section 1373. Neither the WCO nor the police department orders prohibits or in any way restricts Chicago or Chicago's employees from sending to or receiving from Immigration and Customs Enforcement("ICE")information regarding the lawful or unlawful citizenship or immigration status of any person. Furthermore, neither the WCO nor the police department orders prohibits, or in any way restricts, information concerning the lawful or unlawful immigration status of any person from being sent to, or requested from, ICE; maintaining such information; or exchanging such information with any other federal, state, or local government entity.
BACKGROUND
1. Chicago's Welcoming City Ordinance and Police Department Orders
Chicago has long been committed to serving as a welcoming city, and to fostering an environment of safety and inclusion among its residents. That commitment was embodied in an Executive Order issued by Mayor Harold Washington on March 7, 1985("Order").2 The Order's purpose was to encourage equal access where permitted by law to benefits and services to which Chicago residents are entitled regardless of national origin or citizenship status. To that end, Section 3 of the Order prohibited Chicago agents and agencies from requesting information about or otherwise investigating or assisting in the investigation of a person's citizenship or residency status. Section 4 of the Order prohibited an agent or agency from disseminating information about a person's citizenship or residency status "unless required to do by legal process."
On March 29, 2006, the City Council of the City of Chicago codified the Order by enacting the WCO. See Coun. J. 3-29-06, p. 74325. In its preamble, the WCO affirmed Chicago's policy of ensuring that all residents have access to city services for which they are eligible or entitled, without regard to their immigration status under federal law. The preamble further stated that requiring local law enforcement to enforce federal civil immigration law would cause a chilling effect on crime prevention and investigation, as witnesses and victims might be afraid to cooperate with local authorities for fear of possible deportation.
Mayor Ra.hm Emanuel amended the WCO in 2012 to add sections stating the ordinance's purpose and intent, and clarifying that the enforcement of civil immigration law is primarily a federal responsibility. Mayor Emanuel amended the WCO again in 2016 to prohibit City agents and agencies from making threats based on a person's citizenship or immigration status. Given Chicago's unwavering commitment to public safety and community policing, cooperation between law enforcement officials and the immigrant community was of vital concern to Chicago—and it remains a vital concern today.
2 Mayor Washington's Executive Order 85-1 was ratified and adopted in subsequent mayoral administrations by Mayor David Orr as Executive Order 87-5, Mayor Eugene Sawyer as Executive Order 87-8, and Mayor Richard M.Daley as Executive Order 89-6.

os

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Like Sections 3 and 4 ofthe Order, Sections 20 and 30 ofthe WCO address sharing information concerning a person's citizenship or immigration status:
2-173-020 Requesting information prohibited.
No agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision. Notwithstanding this provision, the Corporation Counsel may investigate and inquire about immigration status when relevant to potential or actual litigation or an administrative proceeding in which the City is or may be a PAY•
2-173-030 Disclosing information prohibited3
Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual's parent or guardian.
The policies embodied by the WCO are reflected in Chicago Police Department Special Order 506-14-03 ("Special Order").4 The Special Order deals primarily with issues related to detainer and notification requests that the Chicago Police Department receives from ICE. In addition, consistent with the WCO's non-collection policy concerning an individual's citizenship or immigration status, the Special Order provides that the Chicago Police Department "may seek information on immigration status during the course of an investigation ... only when the individual is in custody and" certain other criteria are met. It does not restrict individuals from sharing information regarding citizenship or immigration status with the federal government.
2. 8 U.S.C. Section 1373
Section 1373 bars state or local entities from "prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful,ofany individual."8 U.S.C.§ 1373(a). In addition,"no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity." 8 U.S.C. § 1373(b).
3 Headings provided in the Municipal Code are for convenience and reference only, and are not considered part of the text of any section. Municipal Code § 1-4-100. 4 Available at https://goo.gUKetR56.
3

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By its plain terms, Section 1373 relates solely to prohibitions on sharing an individual's citizenship or immigration status among governmental entities, and does not require that such information be shared. Furthermore, Section 1373 creates no affirmative obligation to collect information concerning a person's citizenship or immigration status. See Dept ofJustice, July 7, 2016 Guidance ("Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions'upon obtaining such information.").
Additionally, Section 1373 does not require Chicago to comply with immigration detainer requests issued by ICE. See Memorandum from the United States Department of Justice, Office of the Inspector General dated May 31, 2016("IG Memo")at p. 4("A primary and frequently cited indicator of limitations placed on cooperation by...local jurisdictions with ICE is how the particular...local jurisdiction handles immigration detainer requests issued by ICE, although Section 1373 does not specifically address restrictions bv...local entities on cooperation with ICE re arding detainers.")(Emphasis added). Section 1373 refers only to "information regarding the citizenship or immigration status" ofan individual. In contrast, a detainer request asks a local law enforcement agency to detain a person of interest to ICE for up to an additional 48 hours after that person would have been released in order to provide ICE an opportunity to take the person into custody. By its terms, Section 1373's prohibition on restricting information sharing with ICE regarding immigration status cannot be construed to include a mandate that local government keep a person in custody.
DISCUSSION
The WCO complies with Section 1373 for at least two independent reasons. First, the WCO generally prohibits Chicago from requesting or otherwise investigating a person's citizenship or immigration status, whereas Section 1373 prohibits restrictions on the sharing of such information. It follows that Chicago cannot share information concerning a person's citizenship or immigration status if it does not have that information in its possession. Second, while the WCO contains an overall prohibition on the sharing of a person's citizenship or immigration status, it also contains an exception for compliance with applicable federal law. As such, if Chicago were to come into possession of this information, the WCO would not bar Chicago or. its officials from sharing the information with the federal government, such as in response to a lawful request.
1. Chicago cannot share information that is not in its possession.
By its terms, Section 1373's scope is limited to addressing policies that prohibit or restrict sharing ("sending" or "receiving") individual citizenship or immigration status information with another unit ofgovernment. A policy that prohibits the collection ofsuch information in the first place simply is not a violation of Section 1373. Like the 1985 Order before it, Section 20 of the WCO and the Special Order prohibit the collection of such information unless collection is required by state or federal law, a court decision, or as part of anticipated or pending litigation. To the extent that Chicago might nonetheless come into possession ofinformation concerning an individual's citizenship or immigration status, Section 1373 only addresses policies that prohibit or restrict the sharing of such information with other units of government. But outside of such particular instances, Chicago's overarching policy is non-collection—and Chicago cannot share (or restrict the sharing o~ information that it does not have in its possession in the first place. The non-collection policy means that Chicago generally does not possess information to "send[]," but that policy does not prevent any "sending" or "receiving." Thus, except where

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Chicago acquires immigration status information notwithstanding its non-collection policy, Section 1373 does not apply.
2. The WCO does not restrict sharing citizenship or immigration status information with ICE when required by applicable federal law.
To the extent that Chicago has any citizenship or immigration status information, the nondisclosure provisions of Section 30 of the WCO do not restrict such information from being shared within the meaning of Section 1373. Section 30 restricts the disclosure of an individual's citizenship or immigration status information,"[e]xcept as otherwise provided under applicable federal law." Section 30 thus makes clear that an individual's citizenship or immigration status information will not be kept confidential if federal law provides otherwise, or the individual has consented to the release ofsuch informations This language, referred to as a"savings clause" in the IG Memo,makes Section 30 compliant with Section 1373.
The IG Memo raised questions about whether the savings clause was sufficient to demonstrate compliance with Section 1373. In particular, the IG Memo stated that the savings clause in Section 30"creates a potential ambiguity as to the proper construction ofthe[WCO]... because, to be effective, the `savings clause' would render the ordinance null and void whenever ICE officials requested immigration status information from city employees." With respect, this interpretation is wrong for at least two reasons.
First, the plain text of Section 30 is clear that City employees are permitted to share immigration information as "provided under applicable federal law" —including Section 1373 to the extent it is applicable and enforceable. To the extent that Chicago comes into possession of information concerning an individual's citizenship or immigration status, Section 30 prevents Chicago from releasing this information publicly, except where such disclosure is provided for under federal law. There is no ambiguity as to when citizenship and immigration status information may be disclosed.
Second, Section 30 is not rendered "null and void" when the conditions of the saving clause are met. Rather, Section 30's prohibition on disclosure continues to "do work," because (except to the extent provided by federal law) it bars the release of immigration status information to private entities making the same request. Moreover, Section 30 also prevents Chicago from sua sponte releasing an individual's citizenship or immigration status information to the general public.
The IG Memo further states that "the very purpose of the Chicago ordinance, based on our review of its history, was to restrict and largely prohibit the cooperation of city employees with ICE." IG Memo at p. 6. This characterization of the purpose of Chicago's WCO is wrong as demonstrated by the history outlined above. The IG Memo's sole support for its assertion is a July 11, 2012 Chicago Tribune article in which Mayor Emanuel is quoted as saying "[w]e're not going to turn people over to ICE and we're not going to check their immigration status, we'll check for criminal background, but not for immigration status." Respectfully, this article addresses an amendment to the WCO enacted in September of2012 that added a new Section 42 concerning the circumstances under which Chicago would comply with detainer or notification
5 This assumes that a governmental request for information concerning an individual's citizenship and immigration status is consistent with the U.S. Constitution and the federal authority being invoked. In the event that the request was unlawful, Chicago would be under no obligation to provide the requested information.

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requests, and does not restrict in any way the provision of information about citizenship or immigration status information. See Coun. J. 9-12-06, p. 33041, § 1. This September 2012 amendment made no change to Sections 20 or 30's information sharing policies, which were enacted six years earlier in 2006.
In sum, Section 30 does not prohibit or restrict the sharing of citizenship or immigration status information with other units of government, and therefore complies with Section 1373. Nor do other Chicago ordinances or any policy of the Chicago Police Department. That conclusion is consistent with decades of practice under the 1985 Order and the WCO, whereby Chicago has applied for and received many grants from the Department of Justice, and at no previous time has Chicago's compliance with Section 1373 been called into question.
CONCLUSION
Having reviewed the Municipal Code, 8 U.S.C. § 1373, the general and special orders of the Chicago Police Department, and guidance issued by the Department of Justice, we can validate that the WCO and the Police Department's orders axe in compliance with 8 U.S.C. § 1373. Should you, or any entity receiving this validation, have questions or wish to discuss further, please do not hesitate to contact me.

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Exhibit B

8/7/2017 AttorneyCGeanseera:l S1e:s1si7on-scAvn-n0o5un7c2es0ImDmoigcrautiomn eCnomt p#lia:n1ce-2ReFquilireedm:en0ts8fo/0r E7d/w1a7rdPByarngeeM2emoorfia2l JuPstaicge eAsIDsist#an:c5e5Grant Programs | …

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

Tuesday, July 25, 2017

Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs
The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.
"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice's top priority of reducing violent crime, we must encourage these 'sanctuary' jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer."
Attachment(s): Download Byrne JAG Grant Policy Backgrounder
Component(s): Office of the Attorney General
Press Release Number: 17-826
Updated July 25, 2017

https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial

1/1

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Exhibit C

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BACKGROUNDER ON GRANT REQUIREMENTS

The following is on background, attributable to a DOJ official:
 Today, consistent with the goal of increasing information sharing between federal, state, and local law enforcement, Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) recipients for FY 2017 have been notified that they will be required to do the following:
o certify compliance with section 1373, a federal statute applicable to state and local governments that generally bars restrictions on communications between state and local agencies and officials at the Department of Homeland Security;
o permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States; and
o provide at least 48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.
For background on the Byrne JAG program, please click here.
For more information on Byrne JAG allocation for past fiscal years, please click here.
For more information on Byrne JAG as it pertains to FY2017, please click here.
 Improving the flow of information between federal and state law enforcement authorities is paramount to ensuring that federal immigration authorities have the information they need to enforce the law and keep our communities safe.
 8 U.S.C. § 1373 is a federal statute applicable to state and local governments that generally bars restrictions on communication between state and local agencies and officials at the Department of Homeland Security (and certain other entities) with respect to information regarding the citizenship or immigration status of any individual.
 In March 2016, the Department’s Office of Justice Programs (“OJP”) notified recipients of Byrne JAG grants of the requirement to comply with 8 U.S.C. § 1373. The Department has also announced that it will take all lawful steps to claw back any funds awarded to a jurisdiction that violates its grant agreement, including the condition to comply with section 1373.
 These common-sense measures will improve the flow of information between federal, state, and local law enforcement, and help keep our communities safe. Every year, the Department of Justice awards billions of dollars in grants to state and local jurisdictions across the United States. Unfortunately, some of these jurisdictions have adopted policies and regulations that frustrate the enforcement of federal immigration law, including by refusing to cooperate with federal immigration authorities in information sharing about illegal aliens who commit crimes.
 These measures will also prevent the counterproductive use of federal funds for policies that frustrate federal immigration enforcement. By refusing to communicate with the federal officials, these jurisdictions jeopardize the safety of their residents and undermine the Department’s ability to protect the public and reduce crime and violence.

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Exhibit D

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U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

OMB No. 1121-0329 Approval Expires 12/31/2018

The U.S. Department of Justice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Assistance (BJA) is seeking applications for the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. This program furthers the Department’s mission by assisting State, local, and tribal efforts to prevent or reduce crime and violence.
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation
Applications Due: September 5, 2017
Eligibility
Only units of local government may apply under this solicitation. By law, for purposes of the JAG Program, the term “units of local government” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., a mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by Chief Executive of Applicant Government” attached to this solicitation as Appendix I.
In addition, as discussed further below, in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II. (Note: this requirement does not apply to Indian tribal governments.) (The text of 8 U.S.C. § 1373 appears in Appendix II.)
Eligible allocations under JAG are posted annually on the JAG web page under “Funding.”

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Deadline
Applicants must register in the OJP Grants Management System (GMS) prior to submitting an application under this solicitation. All applicants must register, even those that previously registered in GMS. Select the “Apply Online” button associated with the solicitation title. All registrations and applications are due by 5 p.m. eastern time on September 5, 2017.
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As explained below, a unit of local government (other than an Indian tribal government) may not validly accept an award unless that certification is submitted to the Office of Justice Programs (OJP) on or before the day the unit of local government submits the signed award acceptance documents.
For additional information, see How to Apply in Section D. Application and Submission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System (GMS) Support Hotline at 888–549–9901, option 3, or via email at GMS.HelpDesk@usdoj.gov. The GMS Support Hotline operates 24 hours a day, 7 days a week, including on federal holidays.
An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS) Response Center at grants@ncjrs.gov within 24 hours after the application deadline in order to request approval to submit its application. Additional information on reporting technical issues appears under “Experiencing Unforeseen GMS Technical Issues” in How to Apply in Section D. Application and Submission Information.
For assistance with any other requirement of this solicitation, applicants may contact the NCJRS Response Center by telephone at 1–800–851–3420; via TTY at 301–240–6310 (hearing impaired only); by email at grants@ncjrs.gov; by fax to 301–240–5830, or by web chat at https://webcontact.ncjrs.gov/ncjchat/chat.jsp. The NCJRS Response Center hours of operation are 10:00 a.m. to 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. to 8:00 p.m. eastern time on the solicitation close date. Applicants also may contact the appropriate BJA State Policy Advisor.
Funding opportunity number assigned to this solicitation: BJA-2017-11301
Release date: August 3, 2017
2
BJA-2017-11301

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Contents
A. Program Description................................................................................................... 5 Overview ..........................................................................................................................5 Program-Specific Information ..........................................................................................5 Permissible uses of JAG Funds – In general ...................................................................5 Limitations on the use of JAG funds ................................................................................6 Required compliance with applicable federal laws...........................................................8 BJA areas of emphasis ....................................................................................................9 Goals, Objectives, and Deliverables ..............................................................................10 Evidence-Based Programs or Practices ........................................................................10 B. Federal Award Information ....................................................................................... 11 Type of Award................................................................................................................11 Financial Management and System of Internal Controls ...............................................12 Budget and Financial Information ..................................................................................13 Cost Sharing or Match Requirement..............................................................................14 Pre-Agreement Costs (also known as Pre-award Costs)...............................................14 Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs...........14 Costs Associated with Language Assistance (if applicable) ..........................................14 C. Eligibility Information ................................................................................................ 15 D. Application and Submission Information .................................................................. 15 What an Application Should Include ..............................................................................15 How to Apply..................................................................................................................26 E. Application Review Information ................................................................................ 28 Review Process .............................................................................................................28 F. Federal Award Administration Information................................................................ 29 Federal Award Notices ..................................................................................................29 Statutory and Regulatory Requirements; Award Conditions..........................................29 General Information about Post-Federal Award Reporting Requirements.....................30 G. Federal Awarding Agency Contact(s) ...................................................................... 31 H. Other Information ..................................................................................................... 31 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) .....31 Provide Feedback to OJP ..............................................................................................32 Application Checklist..................................................................................................... 33 Appendix I..................................................................................................................... 35
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Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation CFDA #16.738
A. Program Description
Overview The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to States and units of local government. BJA will award JAG Program funds to eligible units of local government under this FY 2017 JAG Program Local Solicitation. (A separate solicitation will be issued for applications to BJA directly from States.)
Statutory Authority: The JAG Program statute is Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the “Omnibus Act” generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG Program statute is codified at 42 U.S.C. §§ 3750-3758. See also 28 U.S.C. § 530C(a).
Program-Specific Information
Permissible uses of JAG Funds – In general In general, JAG funds awarded to a unit of local government under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following:
• Law enforcement programs • Prosecution and court programs • Prevention and education programs • Corrections and community corrections programs • Drug treatment and enforcement programs • Planning, evaluation, and technology improvement programs • Crime victim and witness programs (other than compensation) • Mental health programs and related law enforcement and corrections programs,
including behavioral programs and crisis intervention teams
Under the JAG Program, units of local government may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
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Limitations on the use of JAG funds Prohibited and controlled uses of funds – JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG Program statute as set out at 42 U.S.C. § 3751(d):
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order—
(a) Vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters)
(b) Luxury items (c) Real estate (d) Construction projects (other than penal or correctional institutions) (e) Any similar matters
For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but “controlled,” along with the process for requesting approval regarding controlled items, refer to the JAG Prohibited and Controlled Expenditures Guidance. Information also appears in the JAG FAQs.
Cap on use of JAG award funds for administrative costs – A unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award.
Prohibition of supplanting; no use of JAG funds as “match” – JAG funds may not be used to supplant State or local funds but must be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities. See the JAG FAQs on BJA’s JAG web page for examples of supplanting.
Although supplanting is prohibited, as discussed under “What An Application Should Include,” the leveraging of federal funding is encouraged.
Absent specific federal statutory authority to do so, JAG award funds may not be used as “match” for the purposes of other federal awards.
Other restrictions on use of funds – If a unit of local government chooses to use its FY 2017 JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions:
 Body-Worn Cameras (BWC) A unit of local government that proposes to use FY 2017 JAG award funds to purchase BWC equipment or to implement or enhance BWC programs, must provide to OJP a certification(s) that the unit of local government has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations, training, etc. The certification can be found at: https://www.bja.gov/Funding/BodyWornCameraCert.pdf.
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A unit of local government that proposes to use JAG funds for BWC-related expenses will have funds withheld until the required certification is submitted and approved by OJP.
The BJA BWC Toolkit provides model BWC policies and best practices to assist departments in implementing BWC programs.
Apart from the JAG Program, BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdictions to develop and implement policies and practices required for effective program adoption and address program factors including the purchase, deployment, and maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested units of local government may wish to refer to the BWC web page for more information. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BWC Program.
 Body Armor Ballistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA’s Bulletproof Vest Partnership (BVP) Program. The BVP Program is designed to provide a critical resource to local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, including eligibility and application, refer to the BVP web page. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.
Body armor purchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with the latest applicable National Institute of Justice (NIJ) ballistic or stab standards. In addition, body armor purchased must be made in the United States.
As is the case in the BVP Program, units of local government that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a written “mandatory wear” policy in effect. FAQs related to the mandatory wear policy and certifications can be found at: https://www.bja.gov/Funding/JAGFAQ.pdf. This policy must be in place for at least all uniformed officers before any FY 2017 funding can be used by the unit of local government for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. The certification must be signed by the Authorized Representative and must be attached to the application if proposed as part of the application. If the unit of local government proposes to change project activities to utilize JAG funds to purchase body armor after the award is accepted, the unit of local government must submit the signed certification to BJA at that time. A mandatory wear concept and issues paper and a model policy are available by contacting the BVP Customer Support Center at vests@usdoj.gov or toll free at 1–877–758–3787. The certification form related to mandatory wear can be found at: www.bja.gov/Funding/BodyArmorMandatoryWearCert.pdf.
 DNA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database
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If JAG Program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS, the national DNA database operated by the Federal Bureau of Investigation [FBI]) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other non-governmental DNA database without prior express written approval from BJA.

In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.



Interoperable Communication

Units of local government (including subrecipients) that use FY 2017 JAG funds to

support emergency communications activities (including the purchase of interoperable

communications equipment and technologies such as voice-over-internet protocol

bridging or gateway devices, or equipment to support the build out of wireless

broadband networks in the 700 MHz public safety band under the Federal

Communications Commission [FCC] Waiver Order) should review FY 2017 SAFECOM

Guidance. The SAFECOM Guidance is updated annually to provide current information

on emergency communications policies, eligible costs, best practices, and technical

standards for State, local, tribal, and territorial grantees investing federal funds in

emergency communications projects. Additionally, emergency communications projects

should support the Statewide Communication Interoperability Plan (SCIP) and be

coordinated with the fulltime Statewide Interoperability Coordinator (SWIC) in the State

of the project. As the central coordination point for their State’s interoperability effort, the

SWIC plays a critical role, and can serve as a valuable resource. SWICs are responsible

for the implementation of SCIP through coordination and collaboration with the

emergency response community. The U.S. Department of Homeland Security Office of

Emergency Communications maintains a list of SWICs for each of the States and

territories. Contact OEC@hq.dhs.gov. All communications equipment purchased with FY

2017 JAG Program funding should be identified during quarterly performance metrics

reporting.

In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety communities, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant. Recipients must conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://www.it.ojp.gov/gsp_grantcondition. Recipients must document planned approaches to information sharing and describe compliance to GSP and an appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

Required compliance with applicable federal laws By law, the chief executive (e.g., the mayor) of each unit of local government that applies for an FY 2017 JAG award must certify that the unit of local government will “comply with all provisions of [the JAG program statute] and all other applicable Federal laws.” To satisfy this requirement, each unit of local government applicant must submit two properly executed certifications using the forms shown in Appendix I and Appendix II.

All applicants should understand that OJP awards, including certifications provided in connection with such awards, are subject to review by DOJ, including by OJP and by the DOJ
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Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high risk grantee list, disallowance of costs, and suspension or debarment of the recipient.
BJA areas of emphasis BJA recognizes that there are significant pressures on local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. As a component of OJP, BJA intends to focus much of its work on the areas of emphasis described below, and encourages each unit of local government recipient of an FY 2017 JAG award to join us in addressing these challenges:
• Reducing Gun Violence – Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some municipalities and regions continue to experience unacceptable levels of violent crime at rates far in excess of the national average. BJA encourages units of local government to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so by enhancing reporting to the FBI’s National Instant Criminal Background Check System (NICS).
• National Incident-Based Reporting System (NIBRS) – The FBI has formally announced its intentions to establish NIBRS as the law enforcement crime data reporting standard for the nation. The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local levels. Once this transition is complete, the FBI will no longer collect summary data and will accept data only in the NIBRS format. Also, once the transition is complete, JAG award amounts will be calculated on the basis of submitted NIBRS data. Transitioning all law enforcement agencies to NIBRS is the first step in gathering more comprehensive crime data. BJA encourages recipients of FY 2017 JAG awards to use JAG funds to expedite the transition to NIBRS.
• Officer Safety and Wellness – The issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law Enforcement Officers Memorial Fund indicates that there were 135 line-ofduty law enforcement deaths in 2016—the highest level in the past 5 years and a 10 percent increase from 2015 (123 deaths).
Firearms-related deaths continued to be the leading cause of death (64), increasing 56 percent from 2015 (41). Of particular concern is that of the 64 firearms-related deaths, 21 were as a result of ambush-style attacks representing the highest total in more than two decades. Traffic-related deaths continued to rise in 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns but also on health and wellness as they affect officer performance and safety. It is important for law enforcement to have the tactical skills necessary, and also be physically and mentally well, to perform, survive, and be resilient in the face of the demanding duties of the
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profession. BJA encourages units of local government to use JAG funds to address these needs by providing training, including paying for tuition and travel expenses related to attending trainings such as VALOR training, as well as funding for health and wellness programs for law enforcement officers.
• Border Security – The security of United States borders is critically important to the reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking within the United States (sex and labor trafficking of foreign nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and U.S. deaths from dangerous drugs. Additionally, illegal immigration continues to place a significant strain on federal, State, and local resources—particularly on those agencies charged with border security and immigration enforcement—as well as the local communities into which many of the illegal immigrants are placed. BJA encourages units of local government to use JAG funds to support law enforcement hiring, training, and technology enhancement in the area of border security.
• Collaborative Prosecution – BJA supports strong partnerships between prosecutors and police as a means to improve case outcomes and take violent offenders off the street. BJA strongly encourages State and local law enforcement to foster strong partnerships with prosecutors to adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's “Smart Prosecution” Initiative is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and deliver effective, data-driven, evidence-based strategies to solve chronic problems and fight crime.)
Goals, Objectives, and Deliverables In general, the FY 2017 JAG Program is designed to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice. The JAG Local Program is designed to assist units of local government with respect to criminal justice.
As discussed in more detail below, a unit of local government that receives an FY 2017 JAG award will be required to prepare various types of reports and to submit data related to performance measures and accountability. The Goals, Objectives, and Deliverables are directly related to the JAG Progam accountability measures.
Evidence-Based Programs or Practices OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, juvenile justice, and crime victim services. OJP is committed to:
• Improving the quantity and quality of evidence OJP generates • Integrating evidence into program, practice, and policy decisions within OJP and the
field • Improving the translation of evidence into practice
OJP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained through one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change, and the extent to which a change may be attributed to the activity or intervention.
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Causal evidence depends on the use of scientific methods to rule out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree to which OJP considers a program or practice to be evidence-based. The OJP CrimeSolutions.gov website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of evidence-based policing programs and strategies is available through the Center for Evidence-Based Crime Policy at George Mason University. BJA offers a number of program models designed to effectively implement promising and evidence-based strategies through the BJA “Smart Suite” of programs, including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see: https://www.bja.gov/Programs/CRPPE/smartsuite.html). BJA encourages units of local government to use JAG funds to support these “smart on crime” strategies, including effective partnerships with universities, research partners, and non-traditional criminal justice partners.
BJA Success Stories The BJA Success Stories web page features projects that have demonstrated success or shown promise in reducing crime and positively impacting communities. This web page will be a valuable resource for States, localities, territories, tribes, and criminal justice professionals that seek to identify and learn about JAG and other successful BJA-funded projects linked to innovation, crime reduction, and evidence-based practices. BJA strongly encourages the recipient to submit success stories annually (or more frequently).
If a unit of local government has a success story it would like to submit, it may be submitted through My BJA account, using “add a Success Story” and the Success Story Submission form. Register for a My BJA account using this registration link.
B. Federal Award Information
BJA estimates that it will make up to 1,100 local awards totaling an estimated $83,000,000.
Awards of at least $25,000 are 4 years in length, and award periods will be from October 1, 2016 through September 30, 2020. Extensions beyond this period may be made on a case-bycase basis at the discretion of BJA and must be requested via GMS no less than 30 days prior to the grant end date.
Awards of less than $25,000 are 2 years in length, and award periods will be from October 1, 2016 through September 30, 2018. Extensions of up to 2 years can be requested for these awards via GMS no less than 30 days prior to the grant end date, and will be automatically granted upon request.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutory and Regulatory Requirements; Award Conditions, under Section F. Federal Award Administration Information, for a brief discussion of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants.
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JAG awards are based on a statutory formula as described below.
Once each fiscal year’s overall JAG Program funding level is determined, BJA works with the Bureau of Justice Statistics (BJS) to begin a four-step grant award calculation process, which, in general, consists of:
(1) Computing an initial JAG allocation for each State, based on its share of violent crime and population (weighted equally).
(2) Reviewing the initial JAG allocation amount to determine if the State allocation is less than the minimum award amount defined in the JAG legislation (0.25 percent of the total). If this is the case, the State is funded at the minimum level, and the funds required for this are deducted from the overall pool of JAG funds. Each of the remaining States receive the minimum award plus an additional amount based on its share of violent crime and population.
(3) Dividing each State’s final award amount (except for the territories and District of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.
(4) Determining unit of local government award allocations, which are based on their proportion of the State’s 3-year violent crime average. If the “eligible award amount” for a particular unit of local government as determined on this basis is $10,000 or more, then the unit of local government is eligible to apply directly to OJP (under the JAG Local solicitation) for a JAG award. If the “eligible award amount” to a particular unit of local government as determined on this basis would be less than $10,000, however, the funds are not made available for a direct award to that particular unit of local government, but instead are added to the amount that otherwise would have been awarded to the State.
Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecipients that are pass-through entities1) must, as described in the Part 200 Uniform Requirements2 as set out at 2 C.F.R. 200.303:
(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance that [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in “Standards for Internal Control in the Federal Government” issued by the Comptroller General of the United States and the “Internal Control Integrated Framework”, issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.
1 For purposes of this solicitation, the phrase “pass-through entity” includes any recipient or subrecipient that provides a subaward ("subgrant”) to carry out part of the funded award or program. 2 The "Part 200 Uniform Requirements” refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modifications) the provisions of 2 C.F.R. Part 200.
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(c) Evaluate and monitor [the recipient’s (and any subrecipient’s)] compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subrecipient)] considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand the administrative requirements and cost principles, OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here.
Budget and Financial Information Trust Fund – Units of local government may draw down JAG funds either in advance or on a reimbursement basis. To draw down in advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account. If subrecipients draw down JAG funds in advance, they also must establish a trust fund in which to deposit funds.
Tracking and reporting regarding JAG funds used for State administrative costs – As indicated earlier, a unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately; a recipient must report in separate financial status reports (SF-425) those expenditures that specifically relate to each particular JAG award during any particular reporting period.
No commingling – Both the unit of local government recipient and all subrecipients of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not considered comingling.
Disparate Certification – In some cases, as defined by the legislation, a disparity may exist between the funding eligibility of a county and its associated municipalities. Three different types of disparities may exist:
• The first type is a zero-county disparity. This situation exists when one or more municipalities within a county are eligible for a direct award but the county is not; yet the county is responsible for providing criminal justice services (such as prosecution and incarceration) for the municipality. In this case, the county is entitled to part of the municipality’s award because it shares the cost of criminal justice operations, although it may not report crime data to the FBI. This is the most common type of disparity.
• A second type of disparity exists when both a county and a municipality within that county qualify for a direct award, but the award amount for the municipality exceeds 150 percent of the county’s award amount.
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• The third type of disparity occurs when a county and multiple municipalities within that county are all eligible for direct awards, but the sum of the awards for the individual municipalities exceeds 400 percent of the county’s award amount.
Jurisdictions certified as disparate must identify a fiscal agent that will submit a joint application for the aggregate eligible allocation to all disparate municipalities. The joint application must determine and specify the award distribution to each unit of local government and the purposes for which the funds will be used. When beginning the JAG application process, a Memorandum of Understanding (MOU) that identifies which jurisdiction will serve as the applicant or fiscal agent for joint funds must be completed and signed by the Authorized Representative for each participating jurisdiction. The signed MOU should be attached to the application. For a sample MOU, go to: www.bja.gov/Funding/JAGMOU.pdf.
Cost Sharing or Match Requirement The JAG Program does not require a match.
For additional cost sharing and match information, see the DOJ Grants Financial Guide.
Pre-Agreement Costs (also known as Pre-award Costs) Pre-agreement costs are costs incurred by the applicant prior to the start date of the period of performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred at the sole risk of the applicant. (Generally, no applicant should incur project costs before submitting an application requesting federal funding for those costs.)
Should there be extenuating circumstances that make it appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If approved in advance by OJP, award funds may be used for pre-agreement costs, consistent with the recipient’s approved budget and applicable cost principles. See the section on “Costs Requiring Prior Approval” in the DOJ Grants Financial Guide for more information.
Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs\ OJP strongly encourages every applicant that proposes to use award funds for any conference-, meeting-, or training-related activity (or similar event) to review carefully—before submitting an application—the OJP and DOJ policy and guidance on approval, planning, and reporting of such events, available at: https://www.ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assistance (if applicable) If an applicant proposes a program or activity that would deliver services or benefits to individuals, the costs of taking reasonable steps to provide meaningful access to those services
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or benefits for individuals with limited English proficiency may be allowable. Reasonable steps to provide meaningful access to services or benefits may include interpretation or translation services, where appropriate.
For additional information, see the “Civil Rights Compliance” section under “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.
C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail below, the certification regarding compliance with 8 U.S.C. § 1373 must be executed and submitted before a unit of local government (other than an Indian tribal government) can make a valid award acceptance. Also, a unit of local government may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly executed “Certifications and Assurances by Chief Executive of Applicant Government.”
D. Application and Submission Information
What an Application Should Include This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a decision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the recipient satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narrative and the Budget Detail Worksheet in one document. If an applicant submits only one budget document, however, it must contain both narrative and detail information. Please review the “Note on File Names and File Types” under How to Apply to be sure applications are submitted in permitted formats.
OJP strongly recommends that applicants use appropriately descriptive file names (e.g., “Program Narrative,” “Budget Detail Worksheet and Budget Narrative,” “Timelines,” “Memoranda of Understanding,” “Résumés”) for all attachments. Also, OJP recommends that applicants include résumés in a single file.
In general, if a unit of local government fails to submit required information or documents, OJP either will return the unit of local government’s application in the Grants Management System (GMS) for submission of the missing information or documents, or will attach a condition to the award that will withhold award funds until the necessary information and documents are submitted. (As discussed elsewhere in this solicitation, the certification regarding compliance with 8 U.S.C. § 1373—which is set out at Appendix II—will be handled differently. Unless and until that certification is submitted, the unit of local government (other than an Indian tribal government) will be unable to make a valid acceptance of the award.)
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1. Information to Complete the Application for Federal Assistance (SF-424) The SF-424 is a required standard form used as a cover sheet for submission of preapplications, applications, and related information. GMS takes information from the applicant’s profile to populate the fields on this form.
To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for “Legal Name,” should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP’s financial system. On the SF-424, enter the Legal Name in box 5 and Employer Identification Number (EIN) in box 6 exactly as it appears on the prior year award document. An applicant with a current, active award(s) must ensure that its GMS profile is current. If the profile is not current, the applicant should submit a Grant Adjustment Notice updating the information on its GMS profile prior to applying under this solicitation.
A new applicant entity should enter the Official Legal Name and address of the applicant entity in box 5 and the EIN in box 6 of the SF-424.
Intergovernmental Review: This solicitation (“funding opportunity”) is within the scope of Executive Order 12372, concerning State opportunities to coordinate applications for federal financial assistance. See 28 C.F.R. Part 30. An applicant may find the names and addresses of State Single Points of Contact (SPOCs) at the following website: https://www.whitehouse.gov/omb/grants_spoc/. If the State appears on the SPOC list, the applicant must contact the State SPOC to find out about, and comply with, the State’s process under E.O. 12372. In completing the SF-424, an applicant whose State appears on the SPOC list is to make the appropriate selection in response to question 19 once the applicant has complied with its State E.O. 12372 process. (An applicant whose State does not appear on the SPOC list should answer question 19 by selecting the response that the “Program is subject to E.O. 12372 but has not been selected by the State for review.”)
2. Project Abstract Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
• Written for a general public audience. • Submitted as a separate attachment with “Project Abstract” as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with 1-inch margins. • Include applicant name, title of the project, a brief description of the problem to be
addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. • Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bja.gov/funding/JAGIdentifiers.pdf.
3. Program Narrative The following sections should be included as part of the program narrative3:
a. Statement of the Problem – Identify the unit of local government’s strategy/funding priorities for the FY 2017 JAG funds, the subgrant award process and timeline, and a
3 For information on subawards (including the details on proposed subawards that should be included in the application), see "Budget and Associated Documentation" under Section D. Application and Submission Information.
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description of the programs to be funded over the grant period. Units of local government are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation – Describe the unit of local government’s strategic planning process, if any, that guides its priorities and funding strategy. This should include a description of how the local community is engaged in the planning process and the data and analysis utilized to support the plan; it should identify the stakeholders currently participating in the strategic planning process, the gaps in the needed resources for criminal justice purposes, and how JAG funds will be coordinated with State and related justice funds.
c. Capabilities and Competencies – Describe any additional strategic planning/coordination efforts in which the units of local government participates with other criminal justice criminal/juvenile justice agencies in the State.
d. Plan for Collecting the Data Required for this Solicitation’s Performance Measures – OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the award (see “General Information about PostFederal Award Reporting Requirements” in Section F. Federal Award Administration Information). The performance measures correlate to the goals, objectives, and deliverables identified under “Goals, Objectives, and Deliverables” in Section A. Program Description. Post award, recipients will be required to submit quarterly performance metrics through BJA’s Performance Measurement Tool (PMT), located at: https://bjapmt.ojp.gov. The application should describe the applicant's plan for collection of all of the performance measures data listed in the JAG Program accountability measures at: https://bjapmt.ojp.gov/help/jagdocs.html.
BJA does not require applicants to submit performance measures data with their application. Performance measures are included as an alert that BJA will require successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the required data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic investigations designed to develop or contribute to generalizable knowledge) may constitute “research” for purposes of applicable DOJ human subjects protection regulations. However, project evaluations that are intended only to generate internal improvements to a program or service, or are conducted only to meet OJP’s performance measure data reporting requirements, likely do not constitute “research.” Each applicant should provide sufficient information for OJP to determine whether the particular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears at 28 C.F.R. Part 46 (“Protection of Human Subjects”).
Research, for the purposes of human subjects protection for OJP-funded programs, is defined as “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 28 C.F.R. 46.102(d).
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For additional information on determining whether a proposed activity would constitute research for purposes of human subjects protection, applicants should consult the decision tree in the “Research and the Protection of Human Subjects” section of the “Requirements related to Research” web page of the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017” available through the OJP Funding Resource Center. Every prospective applicant whose application may propose a research or statistical component also should review the “Data Privacy and Confidentiality Requirements” section on that web page.
4. Budget and Associated Documentation
(a) Budget Detail Worksheet A sample Budget Detail Worksheet can be found at www.ojp.gov/funding/Apply/Resources/BudgetDetailWorksheet.pdf. An applicant that submits its budget in a different format should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.
For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grants Financial Guide.
(b) Budget Narrative The Budget Narrative should thoroughly and clearly describe every category of expense listed in the proposed Budget Detail Worksheet. OJP expects proposed budgets to be complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for project activities). This narrative should include a full description of all costs, including administrative costs (if applicable).
An applicant should demonstrate in its Budget Narrative how it will maximize cost effectiveness of award expenditures. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how technology and collaboration with outside organizations could be used to reduce costs, without compromising quality.
The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the Budget Narrative should describe costs by year.
(c) Information on Proposed Subawards (if any), as well as on Proposed Procurement Contracts (if any) Applicants for OJP awards typically may propose to make “subawards.” Applicants also may propose to enter into procurement “contracts” under the award.
Whether—for purposes of federal grants administrative requirements—a particular agreement between a recipient and a third party will be considered a “subaward” or instead considered a procurement “contract” under the award is determined by federal rules and applicable OJP guidance. It is an important distinction, in part because the
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federal administrative rules and requirements that apply to “subawards” and procurement “contracts” under awards differ markedly.
In general, the central question is the relationship between what the third party will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify, research or evaluation it will conduct). If a third party will provide some of the services the recipient has committed (to OJP) to provide, will develop or modify all or part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or evaluation the recipient has committed (to OJP) to conduct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.
This will be true even if the recipient, for internal or other non-federal purposes, labels or treats its agreement as a procurement, a contract, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement—for purposes of federal grants administrative requirements—is a “subaward” or is instead a procurement “contract” under an award.
Additional guidance on the circumstances under which (for purposes of federal grants administrative requirements) an agreement constitutes a subaward as opposed to a procurement contract under an award is available (along with other resources) on the OJP Part 200 Uniform Requirements web page.
(1) Information on proposed subawards and required certification regarding 8 U.S.C. § 1373 from certain subrecipients
General requirement for federal authorization of any subaward; statutory authorizations of subawards under the JAG Program statute. Generally, a recipient of an OJP award may not make subawards (“subgrants”) unless the recipient has specific federal authorization to do so. Unless an applicable statute or DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.
JAG subawards that are required or specifically authorized by statute (see 42 U.S.C. § 3751(a) and 42 U.S.C. § 3755) do not require prior approval to authorize subawards. This includes subawards made by units of local government under the JAG Program.
A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justification of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post award, to request and obtain written authorization from OJP before it may make the subaward.
If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically authorized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a justification for the
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subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification regarding 8 U.S.C. § 1373 from any proposed subrecipient that is a unit of local government or “public” institution of higher education. Before a unit of local government may subaward FY 2017 award funds to another unit of local government or to a public institution of higher education, it will be required (by award condition) to obtain a properly executed certification regarding compliance with 8 U.S.C. § 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will not apply to subawards to Indian tribes). The specific certification the unit of local government must require from another unit of local government will vary somewhat from the specific certification it must require from a public institution of higher education. The forms will be posted and available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contemplating a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreement that— for purposes of federal grants administrative requirements—is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (DOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 - 200.326). The Budget Detail Worksheet and budget narrative should identify proposed procurement contracts. (As discussed above, subawards must be identified and described separately from procurement contracts.)
The Procurement Standards in the (DOJ) Part 200 Uniform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement “contracts” under awards will be entered into on the basis of full and open competition. If a proposed procurement contract would exceed the simplified acquisition threshold—currently, $150,000—a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
An applicant that (at the time of its application) intends—without competition—to enter into a procurement contract that would exceed $150,000 should include a detailed justification that explains to OJP why, in the particular circumstances, it is appropriate to proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Grants Financial Guide.
(d) Pre-Agreement Costs For information on pre-agreement costs, see Section B. Federal Award Information.
5. Indirect Cost Rate Agreement (if applicable) Indirect costs may be charged to an award only if:
(a) The recipient has a current (that is, unexpired), federally approved indirect cost rate; or
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(b) The recipient is eligible to use, and elects to use, the “de minimis” indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).
Note: This rule does not eliminate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.
An applicant with a current (that is, unexpired) federally approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does not have a current federally approved rate may request one through its cognizant federal agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant’s accounting system permits, applicants may propose to allocate costs in the direct cost categories.
For assistance with identifying the appropriate cognizant federal agency for indirect costs, please contact the OCFO Customer Service Center at 1–800–458–0786 or at ask.ocfo@usdoj.gov. If DOJ is the cognizant federal agency, applicants may obtain information needed to submit an indirect cost rate proposal at: www.ojp.gov/funding/Apply/Resources/IndirectCosts.pdf.
Certain OJP recipients have the option of electing to use the “de minimis” indirect cost rate. An applicant that is eligible to use the “de minimis” rate that wishes to use the “de minimis” rate should attach written documentation to the application that advises OJP of both: (1) the applicant’s eligibility to use the “de minimis” rate, and (2) its election to do so. If an eligible applicant elects the “de minimis” rate, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. The “de minimis” rate may no longer be used once an approved federally-negotiated indirect cost rate is in place. (No entity that ever has had a federally approved negotiated indirect cost rate is eligible to use the “de minimis” rate.)
6. Tribal Authorizing Resolution (if applicable) An applicant that proposes to provide direct services or assistance to residents on tribal lands should include in its application a resolution, a letter, affidavit, or other documentation, as appropriate, that demonstrates (as a legal matter) that the applicant has the requisite authorization from the tribe(s) to implement the proposed project on tribal lands.
OJP will not deny an application for an FY 2017 award for failure to submit such tribal authorizing resolution (or other appropriate documentation) by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits the appropriate documentation.
7. Financial Management and System of Internal Controls Questionnaire (including applicant disclosure of high-risk status) Every unit of local government is to complete the OJP Financial Management and System of Internal Controls Questionnaire as part of its application. In accordance with the Part 200 Uniform Requirements as set out at 2 C.F.R. 200.205, federal agencies must have in place a framework for evaluating the risks posed by applicants before they receive a federal award.
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8. Applicant Disclosure of High Risk Status Applicants that are currently designated high risk by another federal grant making agency must disclose that status. For purposes of this disclosure, high risk includes any status under which a federal awarding agency provides additional oversight due to the applicant’s past performance, or other programmatic or financial concerns with the applicant. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the following information:
• The federal agency that currently designated the applicant as high risk • Date the applicant was designated high risk • The high risk point of contact at that federal awarding agency (name, phone number,
and email address). • Reasons for the high risk status, as set out by the federal awarding agency
OJP seeks this information to help ensure appropriate federal oversight of OJP awards. An applicant that is considered “high risk” by another federal awarding agency is not automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additional OJP oversight of any award under this solicitation (including through the conditions that accompany the award document).
9. Disclosure of Lobbying Activities An applicant that expends any funds for lobbying activities is to provide all of the information requested on the form Disclosure of Lobbying Activities (SF-LLL).
10. Certifications and Assurances by the Chief Executive of the Applicant Government A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., the mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by the Chief Executive of the Applicant Government” attached to this solicitation as Appendix I.
OJP will not deny an application for an FY 2017 award for failure to submit these “Certifications and Assurances by the Chief Executive of the Applicant Government” by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properly executed by the chief executive of the unit of local government (e.g., the mayor).
11. Certification of Compliance with 8 U.S.C. § 1373 by the Chief Legal Officer of the Applicant Government The chief legal officer of an applicant unit of local government (e.g., the General Counsel) is to carefully review the “State or Local Government: FY 2017 Certification of Compliance with 8 U.S.C. § 1373” that is attached as Appendix II to this solicitation. If the chief legal officer determines that he or she may execute the certification, the unit of local government is to submit the certification as part of its application. (Note: this requirement does not apply to Indian tribal governments.)
As discussed further below, a unit of local government (other than an Indian tribal government) applicant will be unable to make a valid award acceptance of an FY 2017 JAG
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award unless and until a properly executed certification by its chief legal officer is received by OJP on or before the day the unit of local government submits an executed award document.

12. Additional Attachments

(a) Applicant Disclosure of Pending Applications Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any pending applications for federally funded grants or cooperative agreements that (1) include requests for funding to support the same project being proposed in the application under this solicitation and (2) would cover identical cost items outlined in the budget submitted to OJP as part of the application under this solicitation. The applicant is to disclose applications made directly to federal awarding agencies, and also applications for subawards of federal funds (e.g., applications to State agencies that will subaward (“subgrant”) federal funds).

OJP seeks this information to help avoid any inappropriate duplication of funding. Leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate duplication.

Each applicant that has one or more pending applications as described above is to provide the following information about pending applications submitted within the last 12 months:

• The federal or State funding agency • The solicitation name/project name • The point of contact information at the applicable federal or State funding agency

Federal or State Funding Agency
DOJ/Office of Community Oriented Policing Services (COPS) Health & Human Services/ Substance Abuse and Mental Health Services Administration

Solicitation Name/Phone/Email for Point of Contact at

Name/Project Federal or State Funding Agency

SAMPLE Name
COPS Hiring

Jane Doe, 202/000-0000; jane.doe@usdoj.gov

Program

Drug-Free Communities Mentoring Program/ North County Youth Mentoring Program

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named “Disclosure of Pending Applications.” The applicant Legal Name on the application must match the entity named on the disclosure of pending applications statement.

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Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: “[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending applications submitted within the last 12 months for federally funded grants or cooperative agreements (or for subawards under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this application.”
(b) Research and Evaluation Independence and Integrity (if applicable) If an application involves research (including research and development) and/or evaluation, the applicant must demonstrate research/evaluation independence and integrity, including appropriate safeguards, before it may receive award funds. The applicant must demonstrate independence and integrity regarding both this proposed research and/or evaluation, and any current or prior related projects.
Each application should include an attachment that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document research and evaluation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients), and that the applicant has identified no such conflicts of interest—whether personal or financial or organizational (including on the part of the applicant entity or on the part of staff, investigators, or subrecipients)—that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified—including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients—that could affect the independence or integrity of the research, including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investigators or other staff), financial, or organizational (related to the applicant or any subrecipient entity). Some examples of potential investigator (or other personal) conflict situations are those in which an investigator would be in a position to evaluate a spouse’s work product (actual conflict), or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because the organization in such an
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instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitation, each applicant is to address possible mitigation of research integrity concerns by including, at a minimum, one of the following two items:
a. If an applicant reasonably believes that no actual or potential apparent conflicts of interest (personal, financial, or organizational) exist, then the applicant should provide a brief narrative explanation of how and why it reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or will put in place, to identify and prevent (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OR
b. If the applicant has identified actual or potential apparent conflicts of interest (personal, financial, or organizational) that could affect the independence and integrity of the research, including the design, conduct, or reporting of the research, the applicant is to provide a specific and robust mitigation plan to address each of those conflicts. At a minimum, the applicant is expected to explain the specific processes and procedures that the applicant has in place, or will put in place, to identify and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OJP will assess research and evaluation independence and integrity based on considerations such as the adequacy of the applicant’s efforts to identify factors that could affect the objectivity or integrity of the proposed staff and/or the applicant entity (and any subrecipients) in carrying out the research, development, or evaluation activity; and the adequacy of the applicant’s existing or proposed remedies to control any such factors.
(c) Local Governing Body Review Applicants must submit information via the Certification and Assurances by the Chief Executive (See Appendix I) which documents that the JAG application was made available for review by the governing body of the unit of local government, or to an organization designated by that governing body, for a period that was not less than 30
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days before the application was submitted to BJA. The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a chief executive’s certification to attest to these facts. Units of local government may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.
How to Apply An applicant must submit its application through the Grants Management System (GMS), which provides support for the application, award, and management of awards at OJP. Each applicant entity must register in GMS for each specific funding opportunity. Although the registration and submission deadlines are the same, OJP urges each applicant entity to register promptly, especially if this is the first time the applicant is using the system. Find complete instructions on how to register and submit an application in GMS at www.ojp.gov/gmscbt/. An applicant that experiences technical difficulties during this process should email GMS.HelpDesk@usdoj.gov or call 888–549–9901 (option 3), 24 hours every day, including during federal holidays. OJP recommends that each applicant register promptly to prevent delays in submitting an application package by the deadline.
Note on File Types: GMS does not accept executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: “.com,” “.bat,” “.exe,” “.vbs,” “.cfg,” “.dat,” “.db,” “.dbf,” “.dll,” “.ini,” “.log,” “.ora,” “.sys,” and “.zip.”
Every applicant entity must comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identifier requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination as a basis for making the award to a different applicant.
All applicants should complete the following steps:
1. Acquire a unique entity identifier (DUNS number). In general, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a “unique entity identifier” in each application, including an application for a supplemental award. Currently, a DUNS number is the required unique entity identifier.
A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate address and point of contact information for applicants, recipients, and subrecipients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866–705–5711 to obtain a DUNS number or apply online at www.dnb.com. A DUNS number is usually received within 1–2 business days.
2. Acquire registration with the SAM. SAM is the repository for certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database.
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Each applicant must update or renew its SAM registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.
Information about SAM registration procedures can be accessed at https://www.sam.gov/.
3. Acquire a GMS username and password. New users must create a GMS profile by selecting the “First Time User” link under the sign-in box of the GMS home page. For more information on how to register in GMS, go to www.ojp.gov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile information is up-to-date in GMS (including, but not limited to, address, legal name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration in GMS. OJP requires each applicant to verify its SAM registration in GMS. Once logged into GMS, click the “CCR Claim” link on the left side of the default screen. Click the submit button to verify the SAM (formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or completing the GMS profile for username and password, go to the “Funding Opportunities” link on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial Local Justice Assistance Grant (JAG) Program.
6. Register by selecting the “Apply Online” button associated with the funding opportunity title. The search results from step 5 will display the “funding opportunity” (solicitation) title along with the registration and application deadlines for this solicitation. Select the “Apply Online” button in the “Action” column to register for this solicitation and create an application in the system.
7. Follow the directions in GMS to submit an application consistent with this solicitation. Once the application is submitted, GMS will display a confirmation screen stating the submission was successful. Important: In some instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note: Application Versions If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline may contact the GMS Help Desk or the SAM Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number. The applicant is expected to email the NCJRS Response Center identified in the Contact Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant’s email must describe the technical difficulties, and must include a timeline of the applicant’s submission efforts, the complete grant application, the applicant’s DUNS number, and any GMS Help Desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a late application. After OJP reviews the applicant’s request, and contacts the GMS Help Desk to verify the reported technical issues, OJP will inform the applicant whether the request to submit a late application
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has been approved or denied. If OJP determines that the untimely application submission was due to the applicant’s failure to follow all required procedures, OJP will deny the applicant’s request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
• Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can take as long as 10 business days to complete.)
• Failure to follow GMS instructions on how to register and apply as posted on the GMS website
• Failure to follow each instruction in the OJP solicitation • Technical issues with the applicant’s computer or information technology environment
such as issues with firewalls
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. BJA will also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements, before awards are made, OJP also reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether an applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as excluded from receiving a federal award. In addition, if OJP anticipates that an award will exceed $150,000 in federal funds, OJP also must review and consider any information about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; “FAPIIS”).
Important note on FAPIIS: An applicant, at its option, may review and comment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the applicant, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as—
1. Applicant financial stability and fiscal integrity 2. Quality of the management systems of the applicant, and the applicant’s ability to meet
prescribed management standards, including those outlined in the DOJ Grants Financial Guide 3. Applicant’s history of performance under OJP and other DOJ awards (including compliance with reporting requirements and award conditions), as well as awards from other federal agencies
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4. Reports and findings from audits of the applicant, including audits under the (DOJ) Part 200 Uniform Requirements
5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively implement other award requirements
Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make all final award decisions.
F. Federal Award Administration Information
Federal Award Notices OJP expects to issue award notifications by September 30, 2017. OJP sends award notifications by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to start the award acceptance process. GMS automatically issues the notifications at 9:00 p.m. eastern time on the award date.
NOTE: In order validly to accept an award under the FY 2017 JAG Program, a unit of local government (other than an Indian tribal government) must submit to GMS the certification by its chief legal officer regarding compliance with 8 U.S.C. § 1373, executed using the form that appears in Appendix II. (The form also may be downloaded at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.) Unless the executed certification either (1) is submitted to OJP together with the signed award document or (2) is uploaded in GMS no later than the day the signed award document is submitted, OJP will reject as invalid any submission by a unit of local government (other than an Indian tribal government) that purports to accept an award under this solicitation.
Rejection of an initial submission as an invalid award acceptance is not a denial of the award. Consistent with award requirements, once the unit of local government does submit the necessary certification regarding 8 U.S.C. § 1373, the unit of local government will be permitted to submit an award document executed by the unit of local government on or after the date of that certification.
Also, in order for a unit of local government applicant validly to accept an award under the FY 2017 JAG Program, an individual with the necessary authority to bind the applicant will be required to log in; execute a set of legal certifications and a set of legal assurances; designate a financial point of contact; thoroughly review the award, including all award conditions; and sign and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully executed award document (along with the required certification regarding 8 U.S.C. § 1373, if not already uploaded in GMS) to OJP.
Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including all award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assurances and certifications executed as part of the application or in
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connection with award acceptance, and administrative and policy requirements set by statute or regulation).
OJP strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions prior to submitting an application.
Applicants should consult the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards,” available in the OJP Funding Resource Center. In addition, applicants should examine the following two legal documents, as each successful applicant must execute both documents in GMS before it may receive any award funds.
• Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug-Free Workplace Requirements
• OJP Certified Standard Assurances (attached to this solicitation as Appendix IV)
The web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other pertinent considerations.
Individual FY 2017 JAG awards will include two new express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 JAG award: (1) permit personnel of the U.S. Department of Homeland Security (DHS) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any duly authorized requests from DHS that is encompassed by these conditions, will be allowable costs under the award.
General Information about Post-Federal Award Reporting Requirements A unit of local government recipient of an award under this solicitation will be required to submit the following reports and data:
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Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if reports are delinquent. (In appropriate cases, OJP may require additional reports.)
Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will require the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at: https://ojp.gov/funding/FAPIIS.htm
Data on performance measures. In addition to required reports, each recipient of an award under this solicitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and success, as well as to assist DOJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2010, OJP will require State recipients to provide accountability metrics data. Accountability metrics data must be submitted through BJA’s Performance Measurement Tool (PMT), available at https://bjapmt.ojp.gov. The accountability measures are available at: https://bjapmt.ojp.gov/help/jagdocs.html. (Note that if a law enforcement agency receives JAG funds from a State, the State must submit quarterly accountability metrics data related to training that officers have received on use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.)
OJP may restrict access to award funds if a recipient of an OJP award fails to report required performance measures data in a timely manner.
G. Federal Awarding Agency Contact(s)
For OJP contact(s), see the title page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) All applications submitted to OJP (including all attachments to applications) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act. By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA. DOJ cannot agree in advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA. (Some examples include certain types of information in budgets, and names and contact information for project staff other than certain key personnel.) In appropriate
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circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document. For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that involves research, OJP typically will contact the applicant/recipient that submitted the application and ask it to identify—quite precisely—any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicant/recipient, OJP makes an independent assessment regarding withholding information. OJP generally follows a similar process for requests pursuant to FOIA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicitationFeedback@usdoj.gov. IMPORTANT: This email is for feedback and suggestions only. OJP does not reply to messages it receives in this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitation must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can address specific questions in a timely manner. If you are interested in being a reviewer for other OJP grant applications, please email your résumé to ojppeerreview@lmsolas.com. (Do not send your résumé to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial Justice Assistance Grant (JAG) Program: FY 2017 Local Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS:

_____ Acquire a DUNS Number

(see page 27)

_____ Acquire or renew registration with SAM

(see page 27)

To Register with GMS:

_____ For new users, acquire a GMS username and password*

(see page 27)

_____ For existing users, check GMS username and password* to ensure account access

(see page 27)

_____ Verify SAM registration in GMS

(see page 27)

_____ Search for correct funding opportunity in GMS

(see page 27)

_____ Select correct funding opportunity in GMS

(see page 27)

_____ Register by selecting the “Apply Online” button associated with the funding opportunity

title

(see page 27)

_____ Read OJP policy and guidance on conference approval, planning, and reporting

available at ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm

(see page 14)

_____ If experiencing technical difficulties in GMS, contact the NCJRS Response Center

(see page 2)

*Password Reset Notice – GMS users are reminded that while password reset capabilities exist, this function is only associated with points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a password reset unless requested by the authorized official or a designated point of contact associated with an award or application.

Overview of Post-Award Legal Requirements:

_____ Review the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.

Scope Requirement:

_____ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA’s JAG web page.

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What an Application Should Include:

_____ Application for Federal Assistance (SF-424)

(see page 16)

_____ Project Abstract

(see page 16)

_____ Program Narrative

(see page 17)

_____ Budget Detail Worksheet

(see page 18)

_____ Budget Narrative

(see page 18)

_____ Indirect Cost Rate Agreement (if applicable)

(see page 21)

_____ Tribal Authorizing Resolution (if applicable)

(see page 21)

_____ Financial Management and System of Internal Controls Questionnaire (see page 22)

_____ Disclosure of Lobbying Activities (SF-LLL) (if applicable)

(see page 22)

_____ Certifications and Assurances by Chief Executive

(see page 22)

_____ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (Note: this

requirement does not apply to Indian tribal governments.)

(see page 23)

_____ OJP Certified Standard Assurances

(see page 40)

_____ Additional Attachments

_____ Applicant Disclosure of Pending Applications

(see page 23)

_____ Research and Evaluation Independence and Integrity (if applicable)

(see page 24)

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Appendix I
Certifications and Assurances by the Chief Executive of the Applicant Government
Template for use by chief executive of the “Unit of local government” (e.g., the mayor)
Note: By law, for purposes of the JAG Program, the term “unit of local government ” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373
Template for use by the chief legal officer of the “Local Government” (e.g., the General Counsel) (Note: this Certification is not required by Indian tribal
government applicants.) Available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm
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Appendix III
8 U.S.C. § 1373 (as in effect on June 21, 2017)
Communication between government agencies and the Immigration and Naturalization Service
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note (“Abolition … and Transfer of Functions”)
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Appendix IV
OJP Certified Standard Assurances
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 Case: 1:17-cv-05720 Document #: 21 Filed: 08/10/17 Page 1 of 4 PageID #:142

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

CHICAGO’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff City of Chicago (“Chicago” or the “City”), by its counsel, hereby moves for a preliminary injunction restraining Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, from imposing unauthorized and unconstitutional conditions on FY 2017 Byrne JAG funds. In support hereof, Plaintiff states as follows: 1. Plaintiff’s Complaint seeks to enjoin Defendant from imposing unauthorized and unconstitutional conditions on an established grant program—the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program—that Plaintiff has relied on for over a decade to promote public safety. These conditions seek to undermine the established public safety policies of cities like Chicago. 2. In particular, the new conditions would require Plaintiff to (1) provide at least 48 hours’ advance notice to the Department of Homeland Security (“DHS”) regarding the scheduled release date and time of a non-citizen in the jurisdiction’s custody when DHS requests such notice in order to take custody of the non-citizens pursuant to the Immigration and Nationality Act, (2) permit DHS personnel to access any correctional or detention facility in order to meet with a
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non-citizen (or an individual believed to be a non-citizen) and inquire as to his or her right to be or remain in the United States, and (3) certify compliance with 8 U.S.C. § 1373.
3. The imposition of these conditions by the Attorney General creates an untenable choice for Plaintiff between, on the one hand, complying with unlawful and unconstitutional conditions, and thereby undermining the relationship between law enforcement and immigrant communities that is essential to its crime-fighting operations; and, on the other, forfeiting millions of dollars in funds that it (and the other eleven localities on whose behalf Chicago files applications for funding) depends on to acquire essential police equipment and conduct vital community outreach. Either choice—and indeed simply being forced to make such a choice—would cause irreparable harm to Plaintiff and its residents.
4. Plaintiff’s application for Byrne JAG funding is due on September 5, 2017. Chicago has less than a month to decide whether it will apply for a grant that includes the Department’s ultimatum. Plaintiff has therefore requested an accelerated briefing schedule in its contemporaneously filed Motion to Expedite Briefing Schedule and Unopposed Motion to File Oversized Brief.
5. This Motion for Preliminary Injunction is made on the grounds that Plaintiff is likely to succeed on the merits of its claims, that it will suffer irreparable harm in the absence of preliminary relief, that the balance of equities weighs in favor of an injunction, and that a preliminary injunction would serve the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). These grounds are described in detail in Chicago’s accompanying Memorandum in Support and supporting materials.
WHEREFORE, Plaintiff respectfully requests that this Court enter a Preliminary Injunction by September 5, 2017, enjoining the Attorney General from imposing the aforementioned conditions on FY 2017 Byrne JAG funds.
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August 10, 2017.
JAMIE S. GORELICK (pro hac vice pending) DAVID W. OGDEN (pro hac vice pending) ARI HOLTZBLATT (pro hac vice pending) ARI SAVITZKY (pro hac vice pending) MOLLY JENNINGS (pro hac vice pending) BRIDGET FAHEY* (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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I hereby certify that on August 10, 2017, I caused the foregoing to be electronically transmitted to opposing counsel at the email addresses listed below.
Steven Buckingham, SBucking@civ.usdoj.gov John Tyler, JTyler@civ.usdoj.gov Thomas Walsh, Thomas.Walsh2@usdoj.gov
/s/ Edward N. Siskel _
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 Case: 1:17-cv-05720 Document #: 32 Filed: 08/24/17 Page 1 of 33 PageID #:433

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff, v.
JEFF SESSIONS, Attorney General of the United States,
Defendant.

No. 1:17-cv-05720 Judge Leinenweber

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
STEPHEN J. BUCKINGHAM Special Counsel
W. SCOTT SIMPSON ARJUN GARG
Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3330 Facsimile: (202) 616-8470 E-mail: stephen.buckingham@usdoj.gov
COUNSEL FOR DEFENDANT

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Table of Contents INTRODUCTION .......................................................................................................................... 1 STATUTORY AND ADMINISTRATIVE BACKGROUND....................................................... 4
The Immigration and Nationality Act.................................................................................... 4 OJP and the Byrne JAG Program .......................................................................................... 6 The Byrne JAG Program Grant Application and Approval Process ..................................... 7 Additional Conditions Contemplated for FY 2017 Byrne JAG Program.............................. 8 ARGUMENT .................................................................................................................................. 9 I. The City Is Unlikely to Succeed on the Merits of Its Claims...................................... 10
A. The Challenged Conditions Are Consistent with the Governing Statutes and the Constitutional Separation of Powers. ..................................................................... 10 1. Federal Statutes Authorize Imposition of the Challenged Conditions............ 11 2. The City Is Unlikely to Succeed on Its Ultra Vires Claim. ............................ 15 3. The City Is Unlikely to Succeed on Its Separation of Powers Claim ............. 16
B. The Custody Release and Correctional Facility Access Conditions Are Consistent with the Spending Clause. ...................................................................................... 17
II. The City Has Not Shown a Likelihood of Irreparable Harm Absent Preliminary Relief........................................................................................................................... 22
III. The Public Interest and the Balance of Equities Militate Against a Preliminary Injunction. ................................................................................................................... 25
IV. Any Preliminary Injunction Should Be Limited in Scope........................................... 26 CONCLUSION............................................................................................................................. 27
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Table of Authorities
Cases
Am. Hosp. Ass’n v. Harris, 625 F.2d 1328 (7th Cir. 1980) .................................................................................................. 23
Am. Hosp. Ass’n v. Schweiker, 721 F.2d 170 (7th Cir. 1983) .................................................................................................... 24
Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979 (3d Cir. 1986) ..................................................................................................... 16
Arizona v. United States, 567 U.S. 387 (2012) ............................................................................................................... 4, 5
Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004)................................................................................................ 18
Cause of Action Inst. v. Eggleston, 224 F. Supp. 3d 63 (D.D.C. 2016)............................................................................................ 11
Charles v. Verhagen, 220 F. Supp. 2d 955 (W.D. Wis. 2002) .................................................................................... 17
Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) .......................................................................................... 3, 17, 19
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................................................................................... 21
Clinton v. City of New York, 524 U.S. 417 (1998) ................................................................................................................. 16
ConverDyn v. Moniz, 68 F. Supp. 3d 34 (D.D.C. 2014).............................................................................................. 22
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008)............................................................................................ 24
Ditton v. Rusch, 2014 WL 4435928 (N.D. Ill. Sep. 9, 2014) .............................................................................. 21
DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989)........................................................................................ 3, 11, 16
Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982) ................................................................................................................. 14
Fullilove v. Klutznick, 448 U.S. 448 (1980) ................................................................................................................. 24
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Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053 (7th Cir. 2016) .................................................................................................. 10
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ................................................................................................................. 15
Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................................................. 25
Logansport Mach. Co. v. Neidlein-Spannzeuge GmbH, 2012 WL 1877854 (N.D. Ind. May 22, 2012) .......................................................................... 23
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ................................................................................................................. 25
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) .................................................................................................. 18
Mazurek v. Armstrong, 520 U.S. 968 (1997) ................................................................................................................... 9
McDavid Knee Guard, Inc. v. Nike USA, Inc., 683 F. Supp. 2d 740 (N.D. Ill. 2010)........................................................................................ 23
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ................................................................................................................. 25
N. Illinois Chapter of Associated Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004 (7th Cir. 2005) .................................................................................................. 17
N.Y. v. United States, 179 F.3d 29 (2d Cir. 1999) ....................................................................................................... 14
N. Arapaho Tribe v. Burwell, 90 F. Supp. 3d 1238 (D. Wyo. 2015) ....................................................................................... 24
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).............................................................................................................. 22
Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................................. 24
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ......................................................................................................... 3, 14, 15
PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) .................................................................................................... 25
Petzel v. Kane Cty. Dep’t of Transp., 2017 WL 2880880 (N.D. Ill. July 6, 2017) .............................................................................. 15
Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) .................................................................................................... 23
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Rivas v. Martin, 781 F. Supp. 2d 775 (N.D. Ind. 2011) ...................................................................................... 21
Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984) ...................................................................................................... 9
S. Dakota v. Dole, 483 U.S. 203 (1987) ............................................................................................... 13, 15, 17, 19
Sec’y of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) ................................................................................................ 4, 24
Sofinet v. I.N.S., 188 F.3d 703 (7th Cir. 1999) ................................................................................................ 4, 24
Thomas v. City of Peoria, 580 F.3d 633 (7th Cir. 2009) .................................................................................................... 21
U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016).............................................................................................................. 15
United States v. Berkos, 543 F.3d 392 (7th Cir. 2008) .................................................................................................... 12
United States v. Salerno, 481 U.S. 739 (1987) ................................................................................................................. 14
Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008) ............................................................................................................... 10, 24
Statutes 5 U.S.C. § 704............................................................................................................................... 15 8 U.S.C. §§ 1101-1108 ................................................................................................................... 5 8 U.S.C. § 1226(a) ........................................................................................................................ 21 8 U.S.C. § 1227(a) .......................................................................................................................... 5 8 U.S.C. § 1228............................................................................................................................... 5 8 U.S.C. § 1252c ........................................................................................................................... 19 8 U.S.C. § 1324(c) ........................................................................................................................ 19 8 U.S.C. § 1357(a) .................................................................................................................... 5, 12 8 U.S.C. § 1357(g) ........................................................................................................................ 18 8 U.S.C. §1373....................................................................................................................... passim 42 U.S.C. § 2000cc-1(a) ............................................................................................................... 17
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42 U.S.C. § 3711............................................................................................................................. 6 42 U.S.C. § 3712.................................................................................................................... passim 42 U.S.C. §§ 3750-3758 ........................................................................................................ passim Regulations 2 C.F.R. § 200.203 ...................................................................................................................... 7, 9 2 C.F.R. § 2800.101 ........................................................................................................................ 7 Other Authorities City of Chicago, 2016 Budget Overview,
https://www.cityofchicago.org/content/dam/city/depts/obm/supp_info/2016Budget/2016Budg etOverviewCoC.pdf...................................................................................................................22 Chicago Data Portal, Number of Employees by Department, https://data.cityofchicago.org/ Administration-Finance/ Number-of-Employees-byDepartment-Based-on-Current/atdi-52tt....................................................................................23 Consolidated Appropriations Act, 2017, Pub. L. 115-31 ............................................................... 7 ICE Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), https://www.ice.gov/detainer-policy..............................................................21 Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf..............................................................................8 OJP Grant Process Overview, https://ojp.gov/funding/Apply/GrantProcess.htm........................................................................7 OJP Guidance Regarding Compliance with 8 U.S.C. 1373, https://www.bja.gov/funding/8uscsection1373.pdf.....................................................................2 Omnibus Crime Control and Safe Streets Act of 1968Pub. L. 90-351, 82 Stat. 197 ................................................................................................................................. 6 U.S. Const. Art. I, § 8, cl. 1......................................................................................................15, 16 Welcoming City Ordinance § 2-173-042(c)..................................................................................21
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INTRODUCTION The Department of Justice distributes federal grant funds to aid law enforcement in jurisdictions throughout the country. These funds serve to aid both local and cooperative law enforcement priorities. Consistent with federal prerogatives, the Department has long imposed conditions on these grants, including on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). One such cooperative priority for the Department is the enforcement of a lawful system of immigration, including the removal of aliens who have committed crimes. Accordingly, the Department notified applicants that the Fiscal Year (“FY”) 2017 Byrne JAG Program grants will include conditions that require modest cooperation with federal law enforcement prerogatives in the immigration setting. Those conditions will require grant recipients (1) to certify their compliance with a federal statute, 8 U.S.C. §1373, which prohibits local government and law enforcement entities or officials from restricting certain communications with the Department of Homeland Security (“DHS”) (“the Section 1373 compliance condition”); (2) to ensure that certain federal officials are permitted access to state or local correctional facilities for certain immigration enforcement purposes (“the correctional facility access condition”); and (3) to ensure that certain federal officials are provided advance notice of the scheduled release date of certain individuals held in state or local correctional facilities (“the custody release condition”). See generally Declaration of Alan R. Hanson (“Hanson Decl.”) (attached as Ex. 1). The City of Chicago (“the City”) has repeatedly objected to cooperating fully with requests from the federal government relating to the enforcement of the nation’s immigration laws, and it has adopted ordinances, policies, and practices that frustrate the federal government’s ability to remove criminal aliens from the country. In addition to avoiding
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cooperative efforts through its own, local policies, the City now seeks to do the same with respect to federal prerogatives, asking the Court to enjoin the Department from imposing immigration-related law enforcement conditions on the receipt of federal dollars. The City’s position would, in essence, allow the City, not the Department, to determine the conditions associated with a federal grant that Congress has authorized the Department to award. The City’s position contravenes clear statutory language authorizing the Department to condition Byrne JAG Program funding, and ignores the close relationship between the federally-imposed conditions and federal law enforcement prerogatives.
For these reasons and others, the City has not carried its burden to establish a compelling basis for preliminary injunctive relief against the Department. The City is unlikely to succeed on the merits of the claims asserted in its motion. The City’s claims of ultra vires agency action and violation of the constitutional separation of powers fail because Congress has expressly authorized the Assistant Attorney General (“AAG”) for DOJ’s Office of Justice Programs (“OJP”) to impose the challenged conditions; the AAG enjoys statutory authority to “plac[e] special conditions on all grants,” and to “determin[e] priority purposes for formula grants.” 42 U.S.C. § 3712(a)(6). With respect to Section 1373 in particular, the City is independently required to comply with federal law (including Section 1373) regardless whether it accepts federal grant funding, and, in any event, Congress has separately authorized the Department to require grantees in the Byrne JAG Program to comply with “all . . . applicable Federal laws,” of which Section 1373 is one. Id. § 3752(a)(5); see also OJP Guidance Regarding Compliance with 8 U.S.C. § 1373, available at https://www.bja.gov/funding/8uscsection1373.pdf. The Department is thus not “without any authority whatever,” to impose the challenged conditions, nor does the imposition of the conditions violate the constitutional separation of powers.
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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984); see also DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding statutory delegation to the Executive to impose terms and conditions on federal spending programs).
The City also is unlikely to succeed on its Spending Clause challenge. The Byrne JAG Program and the challenged conditions “share[] the same goal,” and thus meet the relatedness requirement of the Spending Clause. Charles v. Verhagen, 348 F.3d 601, 609 (7th Cir. 2003). OJP and the grant programs it administers are designed to strengthen law enforcement and to “maintain liaison” among the various branches of government “in matters relating to criminal justice.” 42 U.S.C. § 3712(a)(2). The challenged conditions emanate from “the Department of Justice’s top priority of reducing violent crime” and the “long-established cooperative principles among law enforcement agencies.” See, e.g., News Release, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (Jul. 25, 2017) (“AG News Release”), reprinted in Pl’s Req. Jud. Notice, Ex. I (ECF No. 26-9). The conditions fit comfortably within the general relatedness requirement of the Spending Clause.
Nor can the City show that the challenged conditions would require the City to violate the Fourth Amendment (or any other constitutional provision, for that matter). As is evident from the language of the conditions, which the Department has provided to certain units of local government that have applied to the FY 2017 Byrne JAG Program, nothing in the challenged conditions would require the City to detain any individual “beyond the date and time the individual would have been released in the absence of [the] condition.” See, e.g., Byrne JAG Program Grant Award for County of Greenville, SC at ¶¶ 55-56 (attached as Ex. A to the Hanson
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Decl.). Thus, the City is unlikely to succeed on its claim that the challenged conditions will require it to violate the Fourth Amendment.
The City likewise fails to establish the irreparable harm needed for preliminary relief, as the harm it alleges is neither immediate nor substantial. The City faces no immediate deadline for consenting to the challenged conditions because it has not applied to participate in the FY 2017 Byrne JAG Program, and the Department has not issued grant award documents to the City. Should the City apply and receive award documents, it will still have 45 days to review them and the specific grant conditions therein, before determining whether to accept or reject the funding. The City’s allegations of substantial harm are similarly insufficient; the funding at issue under the program amounts to less than one tenth of one percent of the City’s budget. Accordingly, the City has not established the irreparable harm needed for preliminary relief.
The public interest and the balance of equities also militate against preliminary relief. “[T]he United States has an interest in enforcing federal law,” Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 693 (7th Cir. 1986) (en banc) (emphasis omitted), including the “speedy and effective enforcement of the immigration laws.” Sofinet v. I.N.S., 188 F.3d 703, 708 (7th Cir. 1999). The challenged conditions are designed to promote those interests and to effectuate the Department’s mission of reducing crime and illegality and promoting law enforcement cooperation. See generally Declaration of Jim Brown (“Brown Decl.”) (attached as Ex. 2). Those interests far outweigh the City’s speculative allegations of public harm.
STATUTORY AND ADMINISTRATIVE BACKGROUND The Immigration and Nationality Act
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).
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Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-07, Congress granted the Executive Branch significant authority to control the entry, movement, and other conduct of foreign nationals in the United States. The INA authorizes DHS, the Department of Justice, and other Executive Branch agencies to administer and enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise considerable executive discretion to direct enforcement pursuant to federal policy objectives. See, e.g., Arizona, 567 U.S. at 396.
The INA includes several provisions that protect the ability of federal officials to investigate the status of non-citizens in the United States and otherwise enforce the immigration laws. For example, the statute provides that a federal immigration officer “shall have power without warrant . . . to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to 8 U.S.C. § 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a).1 The INA provides that certain classes of noncitizens shall be removed from the United States upon the order of the Attorney General or the Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.
1 Additionally, 8 U.S.C. § 1373(b) provides that “[n]otwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”
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OJP and the Byrne JAG Program Title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, established OJP and provides for it to be headed by an Assistant Attorney General. See Pub. L. No. 90-351, 82 Stat. 197, codified as amended at 42 U.S.C. § 3711. Congress provided the AAG certain “specific, general and delegated powers,” including the power to “publish and disseminate information on the conditions and progress of the criminal justice systems” and “maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice.” Id. §§ 3712(a)(1), (2). The AAG shall also “exercise such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” Id. § 3712(a)(6) (emphasis added). The Omnibus Crime Control Act also established the Byrne JAG Program. See generally 42 U.S.C. §§ 3750-3758. Under this program, OJP is authorized to – make grants to States and units of local government . . . to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of [certain enumerated] programs. Id. § 3751(a)(1). The Byrne JAG Program is a formula grant program, under which funds are made available pursuant to a statutory formula based on population, the rate of violent crime, and other factors. Id. §§ 3751(a)(1), 3755. To request funds under the Byrne JAG Program, applicants must “submit an application to the Attorney General . . . in such form as the Attorney General may require.” Id. § 3752(a). Congress provided that these applications must include, among other things, “[a] certification, made in a form acceptable to the Attorney General, . . . that . . . the applicant will comply with all provisions of this part and all other applicable Federal laws.” Id. § 3752(a)(5) (emphasis added). Before issuing a final disapproval of an application under the Byrne JAG Program, the
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Attorney General must “first afford[] the applicant reasonable notice of any deficiencies in the application and opportunity for correction and reconsideration.” Id. § 3753.
Funding under the Byrne JAG Program is subject to annual appropriations. For FY 2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs from that amount obligated to specific initiatives. See Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. B, Title II, 131 Stat. 135 (2017).
The Byrne JAG Program Grant Application and Approval Process The federal grant-making process, including the issuance of Byrne JAG Program grants, contains several steps. The awarding agency typically issues a solicitation that contains “sufficient information to help an applicant make an informed decision about whether to submit an application.” See generally Office of Management and Budget Guidance for Grants and Agreements (“OMB Uniform Guidance”), 2 C.F.R. § 200.203(c)(2);2 see also OJP Grant Process Overview, available at https://ojp.gov/funding/Apply/GrantProcess.htm. Applicants respond to the solicitation by submitting an application in the form specified and with the relevant information requested. See generally OJP Grant Process Overview. The deadline for local units of government to submit FY 2017 Byrne JAG Program applications is September 5, 2017. See Byrne JAG Program, FY 2017 Local Solicitation, reprinted in Pl’s Req. for Jud. Notice at 2, Ex. K (ECF No. 26-11). For grants administered by OJP and its subcomponents, OJP engages in a multi-factored review of each application and, for those applications that are approved, OJP generates an award package that is transmitted to the applicant. See generally OJP Grant Process Overview. Applicants typically have 45 calendar days to accept the award documents, during which time the applicant has an opportunity to “[r]eview the special conditions on the award documents[.]” Id. Throughout the course of the grant period, OJP monitors compliance with the terms and
2 The Department of Justice has adopted the OMB Uniform Guidance through regulation, with limited exceptions. See 2 C.F.R. § 2800.101.
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conditions of the award and, ultimately, the grantee and OJP engage in certain activities to complete relevant closeout requirements for each award. Id.
In past years, OJP has included a variety of special conditions in the Byrne JAG Program grant award documents, including, for example, conditions requiring the grantee to comply with regulations pertaining to civil rights and nondiscrimination, conditions requiring that body armor purchased with grant funding meet certain minimum quality standards, and conditions designed to encourage grantees to adopt policies banning employees from text messaging while driving on duty. Indeed, for FY 2016, the Chicago/Cook County award included fifty-two special conditions, none of which generated objections or legal challenges from the City. See, e.g., FY 2016 Chicago/Cook County JAG Program Grant Award (Sept. 7, 2017) at 2-13 (attached as Ex. C to the Hanson Decl.). In FY 2016, OJP included for the first time an explicit recognition that Section 1373 was an applicable federal law under the Byrne JAG Program. Id. at 13. That recognition was prompted by a memorandum issued by the Department of Justice’s Inspector General on May 31, 2016, expressing concern that several state and local governments receiving federal grants may not be complying with Section 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at https://oig.justice.gov/reports/ 2016/1607.pdf. Although the Inspector General observed that applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the report made clear that “no one at DHS . . . has made a formal legal determination whether certain state and local laws or policies violate Section 1373, and we are unaware of any Department of Justice decision in that regard.” Id. at 8 n.12.
Additional Conditions for the FY 2017 Byrne JAG Program In July 2017, OJP published a solicitation seeking applications from units of local government for participation in the FY 2017 Byrne JAG Program. See Byrne JAG Program, FY 2017 Local Solicitation (ECF No. 26-11). That solicitation notified potential applicants that the grant award documents for FY 2017 would contain two new special conditions, in addition to the
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requirement to certify compliance with 8 U.S.C. § 1373. Id. at 30. Specifically, OJP notified potential applicants that the correctional facility access condition would be designed to ensure that Byrne JAG Program grantees would permit “personnel of . . . DHS to access any correctional or detention facility in order to meet with an alien . . . and inquire as to his or her right to be or remain in the United States.” Id. OJP further notified potential applicants that the custody release condition would be designed to ensure that Byrne JAG Program grantees would “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the [INA].” Id.
Relevant to the City’s claims in this case, the notification contained in the FY 2017 solicitation is not itself a grant condition, akin to those contained in the grant award documents; rather, it is merely a notification designed to “help an applicant make an informed decision about whether to submit an application.” 2 C.F.R. § 200.203. Following the filing of the instant motion, OJP issued Byrne JAG Program grant award documents to certain local units of government, and those grant award documents contain the precise text of the conditions that the City has challenged in this lawsuit. See, e.g., Byrne JAG Program Grant Award for County of Greenville, SC at ¶¶ 53, 55-56 (attached as Exhibit A to the Hanson Decl.); see also Hanson Decl. at ¶ 6 (confirming that the text of conditions 53, 55, and 56 also “are being included in each award document . . . for awards under the FY 2017 Byrne JAG - Local Solicitation, including any such award document that would be generated for the City of Chicago”).
ARGUMENT “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984) (“[A] preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.”). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
In the Seventh Circuit, “[t]o obtain a preliminary injunction, the plaintiffs must show that (1) they will suffer irreparable harm in the period before final resolution of their claims; (2) traditional legal remedies are inadequate; and (3) the claim has some likelihood of success on the merits. If the plaintiffs make this showing, [the Court] will weigh the factors against one another, assessing whether the balance of harms favors them or whether the harm to other parties or the public is sufficiently weighty that the injunction should be denied.” Jones v. MarkiewiczQualkinbush, 842 F.3d 1053, 1058 (7th Cir. 2016) (citation omitted). I. The City Is Unlikely to Succeed on the Merits of Its Claims.
A. The Challenged Conditions Are Consistent with the Governing Statutes and the Constitutional Separation of Powers.
Under theories related to prohibitions against ultra vires agency action and the constitutional separation of powers, the City first contends that the Department lacks statutory or constitutional authority to impose special conditions on the Byrne JAG Program that would require applicants to certify compliance with 8 U.S.C. § 1373, that relate to providing DHS access to detention facilities, or that relate to providing DHS advance notice of the scheduled release date of non-citizens. See Pl.’s Mem. of Law in Support of Mot. for Prelim. Inj. (“Pl.’s Mem.”) at 10-13, 17-21 (ECF No. 23). Congress, however, has expressly authorized the AAG to “plac[e] special conditions on all grants” administered by OJP, 42 U.S.C. § 3712(a)(6), to “determin[e] priority purposes for formula grants,” id., and to ensure that grantees in the Byrne JAG Program “comply with . . . all other applicable Federal laws.” Id. § 3752(a)(5). Because the Department will impose the challenged special conditions pursuant to these express statutory authorizations, the City cannot reasonably contend that the Department is engaging in “the sort
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of completely unauthorized or illegal conduct that would allow the Court to engage in ultra vires review.” Cause of Action Inst. v. Eggleston, 224 F. Supp. 3d 63, 77 (D.D.C. 2016). Moreover, because Congress may delegate authority to the Executive to condition federal spending, and because it has done so here, the challenged conditions comport with the constitutional separation of powers. See DKT Mem’l Fund Ltd., 887 F.2d at 280-81.
1. Federal Statutes Authorize Imposition of the Challenged Conditions. In attempting to support its ultra vires and separation of powers claims, the City first asserts that the AAG’s authority to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants,” 42 U.S.C. § 3712(a)(6), cannot apply here because “there must be some independent source of statutory authority for the functions to be so vested or delegated in the first place.” See Pl.’s Mem. at 13. But the City provides no support for this limited interpretation of the statute, which contravenes the statute’s plain language. In setting forth the parameters of the AAG’s power, Congress instructed that the AAG shall exercise such “other powers and functions as may be vested in the [AAG] pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” 42 U.S.C. § 3712(a)(6). Pursuant to the plain reading of the statutory language, the AAG’s power must include, at a minimum, the power to “plac[e] special conditions on all grants” administered by OJP, regardless of whether there is “some independent source of statutory authority.” Pl.’s Mem. at 12-13. The breadth of the AAG’s statutory authority is reinforced by the AAG’s authority to “determin[e] priority purposes for formula grants.” 42 U.S.C. § 3712(a)(6). Pursuant to that authority, the AAG may prioritize formula grants, like the Byrne JAG Program, for jurisdictions that assist federal authorities in the enforcement of immigration law. Further, the authority to
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include the custody release and correctional facility access conditions is even clearer in light of 8 U.S.C. § 1357(a)(1), which authorizes federal immigration officers, without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.”
Additionally, if the City’s interpretation were accepted, and the AAG’s power to include special conditions on all grants must be independently provided for in separate statutory provisions, there would be no reason to convey that authority through Section 3712. The City thus falters by “interpreting a statute in a way that renders a word or phrase redundant or meaningless.” United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008).
The City also takes issue with the scope of the Department’s statutory authority to ensure that grantees in the Byrne JAG Program “comply with . . . all other applicable Federal laws.” 42 U.S.C. § 3752(a)(5)(D). According to the City, the term “applicable Federal laws” should be interpreted as referring only to federal statutes “that by their own terms are applicable specifically to recipients of federal funds and enforceable by cutting off those funds.” See Pl.’s Mem. at 19. Again, the City provides no support for that narrowed interpretation of the statutory language, and its proffered interpretation is inconsistent with the plain reading of the statutory text. The relevant statutory language provides:
To request a grant under this part, the chief executive officer of a . . . local government shall submit an application to the Attorney General . . . in such form as the Attorney General may require. Such application shall include the following:
(5) A certification, made in a form acceptable to the Attorney General . . . that— . . .
(D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 42 U.S.C. § 3752 (emphasis added). Congress’s decision to empower the Attorney General to determine the form of Byrne JAG Program applications renders the most natural reading of this
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provision as a delegation to the Attorney General to determine whether a particular federal law constitutes an “applicable Federal law[].” Id. § 3752(a)(5)(D). If Congress had intended to limit the term “applicable Federal laws” as referencing only statutes of the kind that the City suggests, it could have done so expressly.
The City is also incorrect in asserting that every law as to which Byrne JAG Program grantees must certify compliance, “except 8 U.S.C. § 1373[,] is a law that applies only as a condition of receiving federal funds.” Pl.’s Mem. at 20. As reflected in the certified standard assurance form appended to the FY 2017 Byrne JAG Program solicitation, see ECF No. 26-11 at 42, grantees are required to certify compliance with a variety of wide-ranging federal laws and regulations, including laws relating to civil rights protections, to the treatment of displaced persons, and to the political activities of government employees.
Finally, the City is unlikely to succeed on its claim that the Department lacks authority to impose the Section 1373 compliance condition on the ground that “Section 1373 constitutes facially unconstitutional commandeering.” Pl.’s Mem. at 20. As an initial matter, because participation in the Byrne JAG Program is voluntary, the Section 1373 compliance condition does not “commandeer” the City’s resources or employees. The Supreme Court has routinely held that conditioning the receipt of federal funds on whether a state or local jurisdiction complies with a federal statute or takes some other action does not violate the Tenth Amendment, so long as the “State could . . . adopt the simple expedient of not yielding to what she urges is federal coercion.” S. Dakota v. Dole, 483 U.S. 203, 210 (1987) (A “perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.”). Thus, if the City is disinclined to
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certify compliance with Section 1373 (or disinclined to comply with any other grant provision), it may simply decline to participate in the grant program.
Additionally, even aside from the voluntary nature of the grant program, the City is unlikely to succeed on its claim that Section 1373 facially violates the Tenth Amendment. In enacting Section 1373, Congress determined that a state or local government policy barring voluntary cooperation through information sharing with federal immigration officials is incompatible with the effective implementation of federal law. The Second Circuit rejected a facial Tenth Amendment challenge to Section 1373 of the kind the City raises here. See City of N.Y. v. United States, 179 F.3d 29, 35 (2d Cir. 1999). The Tenth Amendment does not give States and their subdivisions “an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs,” particularly in the information sharing context. Id. at 34-35; see also Printz v. United States, 521 U.S. 898, 917-18 (1997). Accordingly, because the City will be unable to establish that “no set of circumstances exists under which [Section 1373] would be valid,” it is unlikely to succeed in any facial challenge that it purports to raise to that provision. United States v. Salerno, 481 U.S. 739, 745 (1987).
2. The City Is Unlikely to Succeed on Its Ultra Vires Claim. The Supreme Court has held that an “officer may be said to act ultra vires only when he acts without any authority whatever.” Pennhurst State Sch. & Hosp., 465 U.S. at 101 n.11; see also Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982) (same). Thus, claims that an agency has used its authority erroneously or inappropriately are insufficient to state an ultra vires claim. Rather, ultra vires claims must be based on an “officer’s lack of delegated power”; merely claiming an “error in the exercise of that power is . . . not sufficient.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690 (1949) (emphasis added).
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Case: 1:17-cv-05720 Document #: 32 Filed: 08/24/17 Page 21 of 33 PageID #:453
Here, the City does not argue that the Department lacks “any authority whatever” to impose the challenged conditions. Pennhurst State Sch. & Hosp, 465 U.S. at 101 n.11. To the contrary, the City affirmatively acknowledges that the Department intends to impose those conditions pursuant to the statutory provisions contained at 42 U.S.C. §§ 3712(a)(6) and 3752(a)(5)(D). See, e.g., Pl.’s Mem. at 12 (noting that the Department has claimed authorization pursuant to 42 U.S.C. § 3712(a)(6)). Thus, rather than legitimately challenging the existence of any authority, the City is necessarily taking issue with the Department’s interpretation of its authority. Arguments concerning a purported “error in the exercise” of delegated authority, however, are “not sufficient” to state an ultra vires claim. Larson, 337 U.S. at 690.3
3. The City Is Unlikely to Succeed on Its Separation of Powers Claim. These same statutory authorities render it unlikely that the City will establish a violation of the constitutional separation of powers. Article I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. “Incident to this power, Congress may attach conditions on the receipt of federal funds . . . .” Dole, 483 U.S. at 206. Importantly, Congress may delegate to the Executive Branch the authority to attach conditions on funding. See, e.g., Clinton v. City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the President the authority to spend, or not to
3 To the extent that the City’s ultra vires theory is predicated on a claim under the Administrative Procedure Act (“APA”), the claim is unlikely to succeed for several additional reasons, including because the APA allows judicial review only of “final agency action.” 5 U.S.C. § 704. The City does not challenge final agency action, nor could it, as it has not yet applied for FY 2017 Byrne JAG Program funds, much less been the subject of an agency action that “mark[s] the consummation of the agency’s decision-making process,” or “determine[s] legal rights and obligations.” Petzel v. Kane Cty. Dep’t of Transp., No. 16 CV 5435, 2017 WL 2880880, at *3 (N.D. Ill. July 6, 2017) (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)).
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Case: 1:17-cv-05720 Document #: 32 Filed: 08/24/17 Page 22 of 33 PageID #:454
spend, particular sums of money.”); Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979, 983 (3d Cir. 1986) (“Congress appropriates funds for a wide variety of purposes and delegates to executive branch officials the authority to make certain decisions regarding how those funds are to be spent.”); DKT Mem’l Fund Ltd., 887 F.2d at 280-81.
Through the statutory authorities described above, Congress delegated authority to the Attorney General and the AAG to impose the challenged conditions on units of local government participating in the Byrne JAG Program. As mentioned, the custody release and correctional facility access conditions are authorized under the AAG’s ability “plac[e] special conditions on all grants” administered by OJP, and to “determin[e] priority purposes for formula grants.” 42 U.S.C. § 3712(a)(6). In addition to that authority, the Section 1373 compliance condition is further authorized by the AAG’s ability to ensure that grantees in the Byrne JAG Program “comply with . . . all other applicable Federal laws.” Id. § 3752(a)(5). Thus, because Congress has explicitly delegated to the Executive certain powers to attach conditions on the receipt of federal funds, the City is unlikely to establish a separation of powers violation here.
B. The Custody Release and Correctional Facility Access Conditions Are Consistent with the Spending Clause.
The City also asserts that two of the challenged grant conditions – the custody release and correctional facility access conditions – would violate the Spending Clause of the U.S. Constitution. Pl.’s Mem. at 13-17. The Spending Clause provides that Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As the Supreme Court has recognized, Congress may employ the spending power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” Dole, 483 U.S. at 206.
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Dole described certain limitations or potential limitations on the spending power. Among other things, the Court observed, “our cases have suggested . . . that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.” Id. at 207-08, 211. The Court also noted that “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.” Id. at 207-08. Relying on these two aspects of Dole, the City argues that the challenged conditions are not “reasonably relevant to the objectives of the Byrne JAG program,” and they might require the City to “engage in activities that would themselves be unconstitutional.” Pl.’s Mem. at 14.
The City interprets the relatedness requirement much too narrowly; the custody release and correctional facility access conditions are sufficiently related to the purposes of the Byrne JAG Program under the relevant constitutional analysis. The Seventh Circuit illuminated the relatedness element in Charles, where state prison officials challenged a requirement to abide by the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a), as a condition of federal corrections funding. 348 F.3d at 609. 4 The state officials argued that “there must be a particularized relationship between a condition’s subject matter and the underlying federal grant to which the condition attaches.” Charles v. Verhagen, 220 F. Supp. 2d 955, 963-64 (W.D. Wis. 2002), aff’d, 348 F.3d at 601. The district court rejected that argument, and the Seventh Circuit affirmed that decision, explaining that a challenged funding condition and the program involved must only “share[] the same goal,” which, in that matter, concerned “the goal of [prisoner] rehabilitation.” Charles, 348 F.3d at 609; see also Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (holding that conditions on federal funding must
4 The Seventh Circuit decision on which the City relies in this regard (Pl.’s Mem. at 14) is a federal preemption case, not a Spending Clause case. See N. Illinois Chapter of Associated Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004 (7th Cir. 2005).
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Case: 1:17-cv-05720 Document #: 32 Filed: 08/24/17 Page 24 of 33 PageID #:456
only “bear some relationship to the purpose of the federal spending.”). Courts have generally found that the relatedness showing does not pose a difficult hurdle. As the D.C. Circuit has observed, the Supreme Court has never “overturned Spending Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004).
The grant conditions at issue here satisfy the relatedness requirement. Contrary to the City’s view that Byrne JAG Program’s primary goal is to preserve “flexibility” for grantees, see Pl.’s Mem. at 14, the program’s overall goals are much broader: to support and strengthen law enforcement and criminal justice. The program’s organic statute specifies that Byrne JAG funds are designed to provide resources “for criminal justice,” to support programs including law enforcement, prosecution, crime prevention and corrections, and victim and witness assistance. 42 U.S.C. § 3751(a)(1) (emphasis added). These goals are also reflected in the responsibilities of the AAG, which involve strengthening “criminal justice.” Id. § 3712(a)(1), (2).
Consistent with that programmatic goal, the challenged conditions are designed to promote criminal justice priorities related to enforcement of criminal immigration statutes. The Attorney General has confirmed that the conditions were prompted by “the Department of Justice’s top priority of reducing violent crime” and the “long-established cooperative principles among law enforcement agencies.” See AG News Release at 3 (ECF No. 26-9). Those goals are consistent with the AAG’s express statutory responsibility to “maintain liaison” between and among the various branches of government “in matters relating to criminal justice.” See 42 U.S.C. § 3712(a)(2). Similarly, the INA also contemplates cooperation among State and local officers and federal officials on immigration enforcement. See, e.g., 8 U.S.C. § 1357(g) (providing that DHS may enter into formal cooperative agreements with states and localities under which appropriately trained and qualified state and local officers may perform specified
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functions of a federal immigration officer in relation to the investigation, apprehension, or detention of aliens); see also 8 U.S.C. § 1324(c) (authorizing state and local law-enforcement officers to make arrests for violations of the INA’s prohibition against smuggling, transporting, or harboring aliens); 8 U.S.C. § 1252c (authorizing state and local officers to arrest certain felons who have unlawfully returned to the United States). Given that the INA expressly contemplates local law enforcement activity with respect to immigration law enforcement, it is perfectly germane and appropriate for the Department to condition grant funding to promote this purpose, just as it does for other important federal priorities. Thus, as the Byrne JAG Program and the challenged conditions “share[] the same goal,” of promoting criminal justice initiatives, Charles, 348 F.3d at 609, the conditions satisfy the relatedness requirement.
The City also alleges that the custody release and correctional facility access conditions will exceed the limitations of the Spending Clause by requiring the City to “engage in activities that would themselves be unconstitutional.” Pl.’s Mem. at 14 (quoting Dole, 483 U.S. at 210). Dole emphasized the narrowness of this limitation on the spending power, noting that “the ‘independent constitutional bar’ limitation . . . is not . . . a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly.” 483 U.S. at 210. Rather, the limitation “stands for the unexceptionable proposition that the spending power may not be used to induce the States to engage in activities that would themselves be unconstitutional . . . for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power.” Id. at 210-11.
As is evident from the plain text of the custody release and correctional facility access conditions, those conditions will not “induce” the City to violate any constitutional prohibition.
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As an initial matter, the Constitution does not forbid DHS employees from accessing detention facilities, nor does it forbid local government employees from providing DHS with certain detainee release information. Thus, in arguing that it will be coerced into violating the Constitution, the City is forced to set up a strawman argument: it contends that the custody release and correctional facility access conditions (which had not issued at the time the City filed its motion) would require the City to “hold arrestees longer than justified by the offense of arrest in order to permit DHS investigation into unrelated offenses” in violation of the Fourth Amendment. Pl.’s Mem. at 15. The City also asserts that the conditions would require it to further violate the Fourth Amendment by “extend[ing] the detention of at least some arrestees,” such as when “an arrestee who [otherwise] would be released on a recognizance bond within a few hours of arrest might be held for additional time to permit questioning by DHS.” Id. at 17.
The text of the conditions nullifies the City’s constitutional concerns. The conditions make clear that “[n]othing in th[ese] condition[s] shall be understood to authorize or require any recipient . . . to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.” See, e.g., Byrne JAG Program Grant Award for County of Greenville, SC at ¶¶ 55-56 (attached as Ex. A to the Hanson Decl.). The conditions further clarify that “[i]n the event that . . . the scheduled release date and time for an alien are such as not to permit the advance notice [of scheduled release] that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.” Id. Thus, because the fully-articulated custody release and correctional facility access conditions explicitly contravene the City’s constitutional concerns, and because OJP is constitutionally prohibited from imposing conditions in a manner that would require grant
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recipients to violate the Fourth Amendment rights of detainees, the City is unlikely to succeed on its claim that it will be forced it to engage in activity that violates the Constitution.5
II. The City Fails to Establish Irreparable Harm Absent Preliminary Relief.
“The threat of irreparable injury necessary to justify the extraordinary remedy of
preliminary injunctive relief must be ‘real,’ ‘substantial,’ and ‘immediate,’ not speculative or
conjectural.” Ditton v. Rusch, No. 14 C 3260, 2014 WL 4435928, at *3 (N.D. Ill. Sep. 9, 2014)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). The City cannot meet its
burden to make that showing here. Most significantly, the City had offered only speculation and
conjecture about irreparable harm because, at the time the City filed its motion, the Department
had not yet issued the precise language of the custody release and correctional facility access
conditions that would attach to the acceptance of FY 2017 Byrne JAG Program funds. As
described above, the final language of those conditions, now available in FY 2017 award
documents that OJP issued to other units of local government, nullifies the City’s constitutional
concerns.
The City’s claim that the conditions amount to an attempt to unconstitutionally coerce the
City into abandoning its right to self-government also fails. Pl.’s Mem. at 21-22. The Supreme
5 Even aside from the constitutionally valid language of the challenged conditions, there is no Fourth Amendment problem with a local jurisdiction cooperating with a federal request to detain an alien after a prison term has ended to facilitate an orderly transfer to DHS custody for removal proceedings. As the Seventh Circuit has made clear, “arrests for violations of purely civil laws are common enough . . . .” Thomas v. City of Peoria, 580 F.3d 633, 638 (7th Cir. 2009). And “[w]hen someone is arrested and detained without a warrant, it is presumptively reasonable for that person to be detained up to 48 hours.” Rivas v. Martin, 781 F. Supp. 2d 775, 780 (N.D. Ind. 2011). Immigration arrests premised on detainers are supported by a warrant. See 8 U.S.C. § 1226(a); ICE Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at https://www.ice.gov/detainer-policy. Indeed, Chicago permits this method of detention under certain circumstances. See Welcoming City Ordinance § 2-173-042(c) (permitting cooperation in immigration detention requests when person in custody has committed a felony or is a known gang member).
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Court has admonished that “courts should not conclude that [an enactment] is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear,” such as where States are subjected to the risk of losing “over 10 percent of a State’s overall budget” if they decline to adopt certain conditions. See Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 581-82 (2012) (emphasis added). The amount of funding at stake to the City through the Byrne JAG Program does not come close to meeting that constitutional threshold. For FY 2016, for example, the City’s participation in the Byrne JAG Program secured $2.33 million, of which the City received $1.66 million, and other local jurisdictions received $669,000. See Decl. of Andrew W. Worseck, Ex. I at 1-2 (ECF No. 27-9). The City’s proposed budget for 2016 was $9.32 billion. See City of Chicago, 2016 Budget Overview at 21.6 Thus, the funds at issue for the City constituted approximately 0.017% of the City’s overall budget. Such a relatively miniscule impact on the City’s overall budget does not meet the “unmistakably clear” threshold for establishing unconstitutional coercion. NFIB, 567 U.S. at 581; see also ConverDyn v. Moniz, 68 F. Supp. 3d 34, 48 (D.D.C. 2014) (in determining irreparable harm, a “claim of substantial financial losses must be evaluated from the perspective of the organization’s total revenues in order to determine if the harm is of a magnitude that warrants injunctive relief”).
The City’s attempt to establish “real” and “substantial” harm in the potential loss of a single City employee, a single $50,000 program, and a vague expectation of losing “goodwill” similarly fails. Pl.’s Mem. at 22-23. The loss of a relatively small program and a single employee, especially in a city with tens of thousands of employees,7 does not constitute
6 https://www.cityofchicago.org/content/dam/city/depts/obm/supp_info/ 2016Budget/2016BudgetOverviewCoC.pdf.
7 See Chicago Data Portal, Number of Emps. by Dep’t, https://data.cityofchicago.org/ Administration-Finance/Number-of-Employees-by-Department-Based-on-Current/atdi-52tt.
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substantial, irreparable harm. By comparison, the case on which the City relies found irreparable harm where an organization “would have to lay off dozens of workers, close multiple clinics, and stop serving a significant number of its patients.” Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep’t of Health, 699 F.3d 962, 980 (7th Cir. 2012) (emphases added)). The City’s vague contention concerning the purported loss of “goodwill” rests on a conclusory affidavit of one police officer expressing a personal opinion. Pl.’s Mem. at 22 (citing Decl. of
Kevin R. Hannigan ¶¶4-5 (ECF No. 24)). A court “should be wary of issuing an injunction
based solely upon allegations and conclusory affidavits submitted by plaintiff.” McDavid Knee Guard, Inc. v. Nike USA, Inc., 683 F. Supp. 2d 740, 749 (N.D. Ill. 2010); see also Logansport Mach. Co. v. Neidlein-Spannzeuge GmbH, No. 3:12-CV-233 JD, 2012 WL 1877854, at *12 (N.D. Ind. May 22, 2012) (“Any proof regarding loss of goodwill is vague and speculative and does not lend much support to [plaintiff’s] request for injunctive relief.”).
Finally, the City complains of irreparable harm due to alleged “budgetary uncertainty” caused by the challenged conditions. Pl.’s Mem. at 24. But vague claims of “budgetary uncertainty” are not the type of “real” and “substantial” injury that suffices to establish irreparable harm. To the contrary, such uncertainty is the natural state of any municipality’s fiscal affairs, which necessarily involve imprecise questions of costs (which are based on services provided) and income (which is based in part on tax revenues). Moreover, any “injury resulting from attempted compliance with government regulation ordinarily is not irreparable harm.” Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980). III. The Public Interest and the Balance of Equities Militate Against an Injunction.
The City also bears the burden of establishing “that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. These factors
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merge in a suit against the Federal Government. Nken v. Holder, 556 U.S. 418, 435 (2009). Here, the public interest weighs heavily against the City’s attempt to enjoin congressionally authorized Executive Branch policies designed to promote enforcement of federal immigration law in jurisdictions that receive Byrne JAG Program funds. Courts have routinely held that “there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008), aff’d sub nom. Cornish v. Doll, 330 F. App’x 919 (Fed. Cir. 2009); accord N. Arapaho Tribe v. Burwell, 90 F. Supp. 3d 1238, 1255 (D. Wyo. 2015).
“The United States has an interest in enforcing federal law . . . .” Fitzsimmons, 805 F.2d at 693 (emphasis omitted). The City’s requested relief threatens, in particular, “the public interest in the speedy and effective enforcement of the immigration laws . . . .” Sofinet, 188 F.3d at 708. The federal government also has an interest in seeing that federal funds are used “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” Fullilove v. Klutznick, 448 U.S. 448, 474 (1980); see Am. Hosp. Ass’n v. Schweiker, 721 F.2d 170, 183 (7th Cir. 1983) (discussing “an exercise by the federal government of its authority under the spending power to bring about certain public policy goals”). The challenged conditions promote those interests by, for example, minimizing potentially hazardous public safety situations that may arise where criminal aliens are released into the community, minimizing officer safety risk by limiting potentially dangerous arrest situations, and promoting operational efficiency by conserving the resources needed by DHS to execute its mission. See Brown Decl. ¶¶ 6-11. At bottom, encouraging cooperation among local governments and DHS promotes the public interest in
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executing federal laws that require removal of criminal aliens. Id. Those concrete interests tip the equities at play here sharply toward denying an injunction. IV. Any Preliminary Injunction Should Be Limited in Scope.
Should the Court nevertheless determine that injunctive relief is appropriate here, any such relief should be limited to the City. “The remedy” sought “must be limited to the inadequacy that produced the injury in fact that the plaintiff has established,” Lewis v. Casey, 518 U.S. 343, 357 (1996), and an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted). Indeed, “a court abuses its discretion where the scope of injunctive relief exceeds the extent of the plaintiff’s protectible rights.” PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272 (7th Cir. 1995). Despite these limits, the City seeks a sweeping injunction that would prohibit imposing the challenged conditions on Byrne JAG Program funds to all applicants. See Proposed Order (ECF No. 21-1).
Because injunctive relief against other Byrne JAG Program applicants is unnecessary to provide complete relief to the City, and because the City has no protected interest in how the Byrne JAG Program is administered as to other applicants, the requested injunction is overbroad. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”). Accordingly, should an injunction issue, it should be limited to the City’s FY 2017 Byrne JAG Program application.
CONCLUSION WHEREFORE, the City’s motion for preliminary injunction should be denied.
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Dated: August 24, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM Special Counsel W. SCOTT SIMPSON ARJUN GARG Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone:(202) 514-3330 Facsimile: (202) 616-8470 E-mail: stephen.buckingham@usdoj.gov
COUNSEL FOR DEFENDANT

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Case: 1:17-cv-05720 Document #: 32 Filed: 08/24/17 Page 33 of 33 PageID #:465 CERTIFICATE OF SERVICE
I hereby certify that on August 24, 2017, I caused the foregoing Opposition to Plaintiff’s Motion for Preliminary Injunction to be filed electronically and that this document is available for viewing and downloading from the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.
/s/ Stephen J. Buckingham Stephen J. Buckingham
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Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 2 of 58 PageID #:467

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 3 of 58 PageID #:468
Exhibit A*
* In the document that follows, on the page labeled "1 of 20," information in the original document has been redacted in fields 2a ("GRANTEE IRS/VENDOR NO") and 2b ("GRANTEE DUNS NO").

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 4 of 58 PageID #:469

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) County of Greenville 301 University Ridge, Suite 600 Greeville, SC 29601
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE Judicial Support and Law Enforcement Enhancements 2017

4 AWARD NUMBER: 2017-DJ-BX-0002

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2020 10/01/2016 TO 09/30/2020

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 163,164

11 TOTAL AWARD

$ 163,164

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Joseph M Kernell County Administrator

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0339

X

B

DJ

80

00

00

163164

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 5 of 58 PageID #:470

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 6 of 58 PageID #:471

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 7 of 58 PageID #:472

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 8 of 58 PageID #:473

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 9 of 58 PageID #:474

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 10 of 58 PageID #:475

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 11 of 58 PageID #:476

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 12 of 58 PageID #:477

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 13 of 58 PageID #:478

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 14 of 58 PageID #:479

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 15 of 58 PageID #:480

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 16 of 58 PageID #:481

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 17 of 58 PageID #:482

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 18 of 58 PageID #:483

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 19 of 58 PageID #:484

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373 htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 20 of 58 PageID #:485

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 21 of 58 PageID #:486

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 22 of 58 PageID #:487

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 23 of 58 PageID #:488

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 24 of 58 PageID #:489
Exhibit B*
* In the document that follows, on the page labeled "1 of 20," information in the original document has been redacted in fields 2a ("GRANTEE IRS/VENDOR NO") and 2b ("GRANTEE DUNS NO").

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 25 of 58 PageID #:490

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) City of Binghamton 38 Hawley Street Binghamton, NY 13901-3777
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE BJA FY 2017 Edward Byrne Memorial Assistance Grant JAG (Parks)

4 AWARD NUMBER: 2017-DJ-BX-0001

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2018 10/01/2016 TO 09/30/2018

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 24,259

11 TOTAL AWARD

$ 24,259

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Richard C David Mayor

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0338

X

B

DJ

80

00

00

24259

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 26 of 58 PageID #:491

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 27 of 58 PageID #:492

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 28 of 58 PageID #:493

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 29 of 58 PageID #:494

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 30 of 58 PageID #:495

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 31 of 58 PageID #:496

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 32 of 58 PageID #:497

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 33 of 58 PageID #:498

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 34 of 58 PageID #:499

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 35 of 58 PageID #:500

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 36 of 58 PageID #:501

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 37 of 58 PageID #:502

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 38 of 58 PageID #:503

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 39 of 58 PageID #:504

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 40 of 58 PageID #:505

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 41 of 58 PageID #:506

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 43 of 58 PageID #:508

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 44 of 58 PageID #:509

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.
59. Initial period of performance; requests for extension
The recipient understands that the initial period of performance for this award is two years. The recipient further understands that any requests for an extension of the period of performance for this award will be approved automatically for up to a total of two additional years, pursuant to 42 U.S.C. 3751(f) and in accordance with the program solicitation associated with this award.
Any request for an extension of the period of performance beyond a four-year award period will require approval, and the approval (if any) will be at the discretion of the Director of BJA.
60. Withholding of funds: Budget narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviewed and accepts, the budget narrative for the award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
61. Withholding of funds: Program narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviews and accepts, the program narrative for this award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
62. Withholding of funds: Memorandum of Understanding
The recipient may not obligate, expend, or draw down any award funds until OJP has reviewed and approved the Memorandum of Understanding (MOU), and a Grant Adjustment Notice (GAN) has been issued to remove this condition.

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Case: 1:17-cv-05720 Document #: 32-2 Filed: 08/24/17 Page 1 of 5 PageID #:524

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
Plaintiff, v.
JEFF SESSIONS, Attorney General of the United States,
Defendant.

Civil Action No. 1:17-cv-05720 Hon. Harry D. Leinenweber

DECLARATION OF JIM BROWN Pursuant to 28 U.S.C. § 1746, I, Jim Brown, declare as follows: 1. I am a Deputy Assistant Director in the Office of Enforcement and Removal Operations (ERO) of U.S. Immigration and Customs Enforcement (ICE). I have been an Immigration Officer since June 30, 1991, serving in the former Immigration & Naturalization Service (INS) and continuing with ICE since its creation in March 2003. In my 26-year career, I have been a member of the management team of INS and ICE for over twenty of those years. 2. My responsibilities include oversight of the Criminal Alien Division (CAD) within ERO. I also have oversight responsibilities over the Special Operations Division within the ERO Field Operations Division. I presently have direct responsibility for the management of the national programs of the Criminal Alien Program, the 287(g) Designated Officer program, the Combined Intelligence Unit, Firearms and Tactical Programs Unit and the Incident & Special Response Unit. 3. ICE is the principal investigative arm of DHS. ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. A critical ICE mandate is the enhancement of public safety and the security of the American public through the enforcement of our immigration laws. ICE is authorized to identify and remove aliens who have
1

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been convicted of crimes such as murder, predatory sexual offenses, narcotics trafficking, alien

smuggling, and a host of other offenses that harm persons in the United States and have

extraordinary public safety consequences. Such aliens can be dangerous and recidivist.

4. The Office of Enforcement and Removal Operations (ERO), within which I work,

is one of the two principal operational components in ICE, the other being the Office of

Homeland Security Investigations. ERO oversees programs and conducts operations to identify

and apprehend removable aliens, to detain these individuals when necessary, and to remove

illegal and removable aliens from the United States. ERO prioritizes the apprehension, arrest,

and removal of convicted criminal aliens, those who pose a threat to national security, fugitives,

recent border entrants, and aliens who thwart immigration controls. ERO manages all logistical

aspects of the removal process, including domestic transportation, detention, alternatives to

detention programs, bond management, and supervised release. In addition, ERO repatriates

aliens ordered removed from the United States to more than 170 countries around the world.

ERO consists of more than 7,500 employees, located at ICE headquarters and in 24 field offices

in the United States and overseas.

5. The Criminal Alien Division (CAD), which I oversee, supports ICE’s mandate by

performing strategic planning and establishing policy designed to augment ICE’s ability to arrest

and remove criminal aliens from the United States following removal proceedings and issuance

of an Order of Final Removal.

6. Where a state or local jurisdiction withholds cooperation with ICE’s operational

ability to enforce federal immigration law against criminal aliens, there are detrimental impacts

on ICE’s ability to fulfill its missions, and thereby to protect the public. These detrimental

impacts can include:

a.

a public safety risk, as criminal aliens are being released into the

community with the potential to re-offend, rather than into ICE custody for removal

proceedings;

2

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b. an officer safety risk, as certain aliens who otherwise would have been

transferred in a controlled, safe, and secure manner directly from state or local custody

into ICE custody for removal proceedings are instead released at large, where they must

be sought for arrest by ERO officers in riskier and potentially hazardous environments;

c.

operational inefficiency, because after the alien has been released at large

from state or local custody, attempting to take the alien into federal custody typically

requires ERO officers to operate in multi-person, outfitted Fugitive Operation teams that

entail a greater expenditure of time, effort, funds, and manpower relative to what is

necessary to take custody of the alien directly from state or local detention; and

d. diminished enforcement, because the need to expend greater resources on

apprehending aliens who have already been released at large limits the number of

criminal aliens ERO is able to apprehend with its limited resources, leaving more

criminal aliens at large and in violation of our immigration laws, and placing the public at

greater risk.

7. The cooperation ICE receives from state and local law enforcement agencies is

critical to its ability to identify and arrest criminal aliens who meet DHS immigration

enforcement and removal priorities.

8. When deprived of access to state and local detention facilities and/or of

communication with state and local officials, ICE is less able to identify criminal aliens who are

subject to removal from the United States pursuant to federal law, and who are likely priorities

for removal given their arrest and custody in a criminal justice system. For example, ICE

officers might have to resort to manually reviewing a list of offenders who were arrested the day

before. Such lists might be posted in a public access area of the state or local detention facility,

and contain the name of the offender and his/her Incident Response (IR) number. ICE officers

then might, for example, run an IR number through a local database that queries the arrest record

for the current offense and any other past offenses in the local area to determine the place of birth

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of the offender. This data is then compared to data in various ICE databases to determine if there have been prior encounters with this individual, and to avoid placing detainers on naturalized citizens. Not only is this a more complex and laborious process than otherwise would be available with better cooperation from state and local authorities, but also many removable criminal aliens cannot be identified by this process and, consequently, they would be released from state or local custody without ICE becoming aware of their presence.
9. If ICE becomes aware of a criminal alien’s imminent release from state or local detention and must make an arrest outside the detention facility, ICE policy requires at least two officers present for such encounters. Were ICE able to arrest within the detention facility, only one officer would be required. Thus, at a minimum, the manpower requirement at least doubles when arrests within state and local detention facilities are not made possible.
10. The absence of cooperation enabling ICE to take custody of criminal aliens directly from state or local detention creates the potential for more dangerous arrest situations where an alien has already been released at large. To apprehend such an alien, ICE will have to attempt to locate that person either at home or somewhere else in the community. This can create a more dangerous situation for ICE officers, who may have to go into a dangerous environment to find an individual, and potentially for community members, who may be caught in the middle of a less than peaceful surrender. This situation involves a greater possibility of the use of force or violence by the target, who, once out in the community, may resist being taken back into custody and may have greater access to weapons.
11. Having 48 hours’ advance notice, where feasible, of a criminal alien’s release from detention is extremely important to ICE so that it can determine how to best allocate its limited personnel resources. Apprehending criminal aliens after they have been released into the community requires the expenditure of significantly greater resources. ICE estimates that it takes ERO four times as long to conduct at-large arrests than to arrest aliens at jails and prisons through the Criminal Alien Program. At current staffing levels, ICE field offices are not able to
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 Case: 1:17-cv-05720 Document #: 69 Filed: 08/31/17 Page 1 of 23 PageID #:846

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Case: 1:17-cv-05720 Document #: 69 Filed: 08/31/17 Page 2 of 23 PageID #:847
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES.......................................................................................................................... ii ARGUMENT ................................................................................................................................................... 2
I. CHICAGO IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS. .......................................................................................................................... 2 A. The Notice And Access Conditions Lack Statutory Authorization And Therefore Are Ultra Vires And Violate The Separation Of Powers. ..................................................................................... 2 1. The Notice And Access Conditions Are Ultra Vires.............................. 2 2. The Notice And Access Conditions Violate The Separation Of Powers................................................................................. 7 B. The Section 1373 Condition Is Likewise Unauthorized And Unconstitutional........................................................................................................ 7 C. The Notice And Access Conditions Violate The Spending Clause. ....................................................................................................................... 10 1. Neither Condition Is Germane To The Purposes Of The JAG Program. ....................................................................................10 2. DOJ Has Effectively Conceded That Its Original Notice And Access Conditions Would Violate The Fourth Amendment. .................................................................................11
II. CHICAGO WILL BE IRREPARABLY HARMED ABSENT PRELIMINARY RELIEF..................................................................................................12
III. THE EQUITIES AND THE PUBLIC INTEREST FAVOR PRELIMINARY RELIEF..................................................................................................14
IV. THE REQUESTED INJUNCTION SHOULD BE NATIONWIDE. .................................................................................................................. 15
CONCLUSION ............................................................................................................................................... 16
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TABLE OF AUTHORITIES

CASES

Page(s)

A.O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976) ..............................................................................................................14

Alton R. Co. v. United States, 287 U.S. 229 (1932) .............................................................................................................................. 9

American Hospital Association v. Harris, 625 F.2d 1328 (7th Cir. 1980)...........................................................................................................14

American Trucking Associations v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009)...........................................................................................................12

Branch v. Smith, 538 U.S. 254 (2003) .............................................................................................................................. 9

Chickasaw Nation v. United States, 534 U.S. 84 (2001) ................................................................................................................................ 4

Ciarpaglini v. Norwood, 817 F.3d 541 (7th Cir. 2016).............................................................................................................12

City of Arlington v. FCC, 133 S. Ct. 1863 (2013).......................................................................................................................... 3

City of El Cenizo v. Texas, No. SA-17-CV-404, slip op. (W.D. Tex. Aug. 30, 2017), ECF No. 189............................. 11, 12

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) .................................................................................................................. 9

County of Santa Clara v. Trump, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).................................................................... 11, 12, 13

County of Santa Clara v. Trump, 2017 WL 3086064 (N.D. Cal. July 20, 2017)..................................................................................12

Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262 (5th Cir. 2012).............................................................................................................14

Ditton v. Rusch, 2014 WL 4435928 (N.D. Ill. Sept. 9, 2014) ....................................................................................14

Ex parte Young, 209 U.S. 123 (1908) .............................................................................................................................. 3

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Gaffney v. Riverboat Services, 451 F.3d 424 (7th Cir. 2006) ............................................................................................................... 4
Gonzales v. Oregon, 546 U.S. 243 (2006)..........................................................................................................................3, 5
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ..........................................................................................................14
Gregory v. Ashcroft, 501 U.S. 452 (1991)..........................................................................................................................3, 8
Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).............................................................................................................14
International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.), cert. granted, 137 S. Ct. 2080 (2017) .........................................................15
Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001).................................................................................................. 12, 13
Kelly v. Robinson, 479 U.S. 36 (1986) ..............................................................................................................................12
Long v. Teachers’ Retirement System of Illinois, 585 F.3d 344 (7th Cir. 2009) ............................................................................................................... 6
Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986) .............................................................................................................................. 3
M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012).............................................................................................................14
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956) .............................................................................................................................. 6
P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ................................................................................................................................ 4
Printz v. United States, 521 U.S. 898 (1997) .............................................................................................................................. 9
Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998).............................................................................................................12
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) .............................................................................................................................. 3
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Case: 1:17-cv-05720 Document #: 69 Filed: 08/31/17 Page 5 of 23 PageID #:850
Texas v. United States, 787 F.3d 733 (5th Cir. 2015).............................................................................................................15
Texas v. United States, 809 F.3d 134 (5th Cir. 2015).............................................................................................................14
Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998)............................................................................................................. 9
United States v. Atlantic Research Corp., 551 U.S. 128 (2007) .............................................................................................................................. 4
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)...........................................................................................................11
Whitman v. American Trucking Associations, 531 U.S. 457 (2001) .............................................................................................................................. 5
Winter v. Natural Resources Defense Counsel, 555 U.S. 7 (2008) ................................................................................................................................13 CONSTITUTIONAL PROVISIONS & STATUTES
5 U.S.C. § 704 ....................................................................................................................................................... 6 § 1501(4) ................................................................................................................................................ 9
8 U.S.C. § 1357(a)(1)............................................................................................................................................ 5 § 1373 ............................................................................................................................................. passim
20 U.S.C. § 1681(a) ............................................................................................................................................ 8 29 U.S.C. § 794(a)............................................................................................................................................... 8
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42 U.S.C. § 2000d................................................................................................................................................... 8 § 3712(a)(6)............................................................................................................................... 3, 4, 5, 6 § 3751(a)(1)......................................................................................................................................2, 10 § 3752(a).............................................................................................................................................2, 8 § 3755(d)(2)(A)..................................................................................................................................2, 6 § 3756(b) ................................................................................................................................................ 6 § 3789d(c) .............................................................................................................................................. 8 § 3796gg-1(e)(3) .................................................................................................................................... 2 § 4322(D)............................................................................................................................................... 8 § 4604(c) ................................................................................................................................................ 8 § 5671 ..................................................................................................................................................... 8 § 6102 ..................................................................................................................................................... 8 § 10604 ................................................................................................................................................... 8 § 13727(c)(2).......................................................................................................................................... 5 § 13925(b)(13) ....................................................................................................................................... 8 § 16925(a) .............................................................................................................................................. 5
54 U.S.C. § 306108................................................................................................................................................. 8 § 312502(B)(1)...................................................................................................................................8, 9
Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162 (2005) ................................................................................................................ 6
U.S. Const. amend. IV ............................................................................................................................. 11, 12 OTHER AUTHORITIES
H.R. Rep. No. 109-233 (2005) .....................................................................................................................3, 7 S. Rep. No. 104-249 (1996) .............................................................................................................................. 9
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Congress has not authorized, and the Constitution does not permit, the Attorney General (AG) to require Chicago to enforce federal immigration law as a condition of receiving Byrne JAG (JAG) funds. The text, structure, and purpose of the JAG statute all make clear that the program is meant to respect and promote local control of law enforcement policy, not compel police departments everywhere to pursue a single set of federally defined objectives. The AG’s three conditions, however, would do just that, and thus exceed his statutory authority. The conditions also violate the Constitution. They upset the separation of powers by exercising Spending Clause authority assigned to Congress, not the Executive. They further violate that Clause’s germaneness requirement by straying far from the JAG program’s purpose of providing local flexibility. The § 1373 condition unconstitutionally commandeers state and local officials. And the original notice and access conditions would require Chicago to violate the Fourth Amendment.
The AG’s opposition confirms the strength of these claims. Rather than dispute Chicago’s reading of the JAG statute, the AG principally (and for the notice and access conditions, exclusively) relies on another statute describing the duties and functions of another official in the Department of Justice (DOJ). But that provision does not, as the AG urges, grant unbounded authority to place any condition on any grant that DOJ administers. And it certainly does not authorize conditions, such as these, that nullify or violate express restrictions in the JAG statute. Such vast power, moreover, far exceeds the separation-of-powers, federalism, and Spending Clause limits set by the Constitution. As for the Fourth Amendment, the AG has effectively conceded the defect in the original notice and access conditions by rewriting them the day before filing his opposition.
Meanwhile, the AG’s policy arguments are misleading at best (and cannot overcome the legal deficiencies in the AG’s position in any event). The AG portrays the new conditions as needed to target “criminal aliens” and “reduc[e] violent crime,” as if Chicago were ignoring both. But Chicago’s Welcoming City Ordinance already allows cooperation with federal immigration agencies
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regarding persons suspected or convicted of serious crimes. And his conditions reach far beyond such persons to people who have not even been accused—much less convicted—of any crime. Chicago has chosen to refrain from needlessly targeting those individuals, and to foster relations between police and immigrant communities. DOJ improperly seeks to force an end to that policy.
The AG’s own words crystallize the irreparable injury Chicago faces: “[R]equir[ing]” Chicago to “reorder[ its] law enforcement practice” or “los[e] federal grant money” is “exactly the point!” of the new conditions. Second Request for Judicial Notice (RJN II), Ex. A. Either the City must repeal its Ordinance, notwithstanding the judgment of Chicago’s law enforcement leaders that doing so will undermine cooperation from immigrant communities and make Chicago less safe, or it must forgo critical public safety funds, including for ShotSpotter technology that will help police pinpoint the location of shooting incidents faster and with more precision, Fahey Decl., Ex. A. Forcing that choice on Chicago would be troubling even if it were not also unlawful. Preliminary relief is needed.
ARGUMENT I. CHICAGO IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS
A. The Notice And Access Conditions Lack Statutory Authorization And Therefore Are Ultra Vires And Violate The Separation Of Powers 1. The Notice And Access Conditions Are Ultra Vires
Under the JAG statute, the AG lacks authority to condition funds on compliance with the notice and access conditions. Mem. 10-12. Unlike other grant statutes that authorize him to “impose reasonable conditions on grant awards,” e.g., 42 U.S.C. § 3796gg-1(e)(3), the JAG statute nowhere provides open-ended conditioning authority. Rather, Congress structured the JAG program as a formula grant, mandating that the AG “shall allocate” funds to local governments, id. § 3755(d)(2)(A), “in accordance with” a formula based on population and crime statistics, id. § 3751(a)(1). Congress promised to fund locally defined priorities within “any one” of eight broadly defined programmatic goals. Id. §§ 3751(a)(1)-(2), 3752(a)(6)(B). Congress adopted this formula-
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driven, locally responsive approach to achieve an overarching objective: to “give State and local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). The AG’s claimed conditioning authority conflicts with Congress’s express instructions and goals.
The AG’s lack of authority is dispositive. An agency “has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Thus, “when [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013).1 The AG bears a heavy burden to demonstrate his authority: When an action would “upset the usual constitutional balance of federal and state powers,” Congress must make its intention to authorize it “‘unmistakably clear in the language of the statute.’” Gregory v. Ashcroft, 501 U.S. 452, 452 (1991). Such authorization is most urgent where, as here, federal action threatens to interfere with “the States’ police power,” Gonzales v. Oregon, 546 U.S. 243, 274 (2006), and especially where, as here, “an administrative interpretation” (not an express legislative directive) purports to “alter[] the federal-state framework,” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172-73 (2001).
The AG disputes neither these principles nor Chicago’s reading of the JAG statute. Remarkably, he does not once discuss that statute in defending his authority to impose the notice and access conditions. Opp. 11-12. Rather, he argues that another, obscure provision specifying the “Duties and Functions of the Assistant Attorney General” (AAG) for the Office of Justice Programs, a subordinate official, 42 U.S.C. § 3712(a)(6), somehow grants DOJ unlimited authority to
1 The AG contends (Opp. 14) that an ultra vires claim must be based on a “officer’s lack of delegated power” rather on a mere “error in the exercise of that power.” Chicago’s claim is that Congress did not delegate to the AG the power to impose the conditions at issue. In any event, the cases relied on by the AG are inapposite, because they address whether claims of ultra vires action by state officials preclude the assertion of state sovereign immunity under the Eleventh Amendment. See Ex parte Young, 209 U.S. 123 (1908). In cases involving unauthorized federal administrative action the law is clear that actions are “ultra vires” if they are either “improper[]” or “beyond [an agency’s] jurisdiction.” City of Arlington, 133 S. Ct. at 1869.
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impose policy conditions on grants “regardless of whether there is some independent source of statutory authority.” Opp. 11 (emphasis added). Such a sweeping construction cannot be reconciled with that provision’s text and would violate bedrock principles of statutory interpretation. Moreover, it would nullify express requirements and defy specific constraints in the JAG statute (and many other Departmental grant programs besides). It must be rejected.
First, as a textual matter, § 3712(a)(6) does not independently confer any conditioning authority at all. Following a list of duties expressly given to the AAG, § 3712(a)(6) provides that he may also “exercise such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation of the [AG], including placing special conditions on all grants, and determining priority purposes for formula grants.” § 3712(a)(6) (emphasis added). That language is clear: The first clause of § 3712(a)(6) authorizes the AAG to exercise those “powers” that are “vested in [him]” either directly by a provision in “this chapter” or indirectly “by delegation” from the AG. Mem. 12-13. The second clause provides that the powers that “may be vested” in those ways “includ[e]” the power to “plac[e] special conditions on all grants, and determin[e] priority purposes for formula grants.” The AG’s assertion that the second clause operates as an independent delegation of unlimited conditioning authority must be wrong because the word “including” has an established meaning: The grant-conditioning powers in the second clause are a “part” or “subset” of powers, that “may be vested” in the AAG if another statute or the AG so vests them. See Chickasaw Nation v. United States, 534 U.S. 84, 89 (2001) (“To ‘‘include’ is to ‘contain’ or ‘comprise as part of a whole.’”); Gaffney v. Riverboat Servs., 451 F.3d 424, 459 (7th Cir. 2006) (“‘Including’ … is interpreted as a word of . . . illustrative application”).2 The AG cannot rewrite “‘including’ [to] mean[] ‘and’ or ‘as well as.’” P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 77 n.7 (1979).3
2 The AG suggests (Opp. 12) that declining to interpret § 3712(a)(6) as he proposes would leave “no reason” for the second clause. But Congress often uses clauses to “perform[] . . . [the] significant function . . . [of] clarifying” statutory text. See United States v. Atl. Research Corp., 551 U.S. 128, 137 (2007). By contrast, the
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Second, it defies reason to believe that Congress conferred such vast powers in a provision
like § 3712(a)(6). Congress created dozens of grant programs for DOJ to administer, each with a
specific purpose and method for allocating funds. But the AG argues Congress also used a minor
amendment to an ancillary provision governing a sub-cabinet post to confer limitless power—
wholly unmentioned in the grant statutes themselves—to condition and prioritize those funds
(totaling $2.32 billion in 2017 (Fahey Decl., Ex. B)). The power the AG now claims is not limited to
this grant program or these conditions; it could be used to impose whatever policies this or any
other AG deems worthwhile—from ever more aggressive immigration policies to strict restrictions
on gun possession. That cannot be. Congress “does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants
in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). And it certainly does not
do so in ways that would radically alter the federal-state balance of power. See Gonzales, 546 U.S. at
274 (“principles of our federal system . . . belie the notion that Congress would use . . . an obscure
grant of authority to regulate areas traditionally supervised by the States’ police power”).4
Third, the AG’s unrestrained reading of § 3712(a)(6) would nullify or violate multiple
provisions of the JAG statue, which was enacted simultaneously with the relevant language in
AG’s overreading would render superfluous every statutory provision giving DOJ authority to impose specific grant conditions, including at least two statutes enacted after § 3712(a)(6) that authorize DOJ to reduce JAG funds for recipients in particular, specified circumstances. See 42 U.S.C. § 13727(c)(2) (Death In Custody Reporting Act of 2013); 42 U.S.C. § 16925(a) (Adam Walsh Child Protection and Safety Act of 2006). 3 Nor does 8 U.S.C. § 1357(a)(1) have any bearing on the AAG’s authority under § 3712, as DOJ suggests. Opp. 11-12. Section 1357 meets none of the requirements of § 3712: It is part of the Immigration and Nationality Act and not “this chapter,” it does not “vest[]” any power in the AAG, and it does not mention “special conditions” or “priority purposes” for OJP (or any other) grant programs. 4 Nor can the AG distract from his lack of authority by pointing to the inclusion of “fifty-two” so-called “Special Conditions” in Chicago’s 2016 grant award. Opp. 8. It is not even clear that those conditions are “special” within the meaning of § 3712. DOJ has never defined that term and elsewhere refers to many of these same conditions as “General Conditions.” Compare RJN II, Ex. B, with Dkt. 32-1 (Hanson Decl.) Ex. C. Those conditions, moreover, range from standard OMB financial integrity requirements to conditions expressly authorized by the JAG statute or other federal statutes. None of them imposes substantive conditions across-the-board on all grantees that are not independently authorized by statute and that are wholly unconnected from how the grantee will use the grant.
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§ 3712(a)(6)—thereby breaching the rule that simultaneously enacted provisions must be construed “harmoni[ously].” Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 298 (1956); see Pub. L. No. 109-162 § 1111 (2005) (enacting JAG); id. § 1152 (amending § 3712(a)(6)). To start, the AG’s construction would nullify the JAG statute’s mandatory formula. The AG maintains (Opp. 11) that § 3712(a)(6) authorizes the AAG to “prioritize … the Byrne JAG program[] for jurisdictions that assist federal authorities in the enforcement of immigration law.” But the JAG formula mandates that the AG “shall” allocate funds based on population and crime statistics, not which jurisdictions comply with his immigration enforcement priorities. 42 U.S.C. § 3755(d)(2)(A). Reprioritizing based on the AG’s immigration goals would significantly distort the statute’s formula: Denying JAG funds to just Chicago and the local amici would reallocate nearly 20% of the funds allocated to localities nationally and 65% of such funds allocated to localities in Illinois. RJN II, Ex.C-Q.
The AG’s asserted powers would also violate an express prohibition in the JAG statute’s “Reserved Funds” provision. That provision grants the AG the authority to reallocate JAG funds based on policy priorities—but only when “necessary” to address “extraordinary increases in crime” or to “mitigate significant programmatic harm” caused by the formula, and only for “not more than 5 percent” of the total pool of available JAG funds. 42 U.S.C. § 3756(b). It cannot be that Congress imposed substantive limits and a hard 5% cap on the AG’s authority to reallocate JAG funds and yet simultaneously gave the AAG boundless authority to impose any condition on 100% of those same funds. The Reserved Funds provision demonstrates that when Congress wished to confer some discretion on DOJ to administer JAG funds, it did so expressly and precisely. Congress did nothing of the sort with respect to the sweeping power now claimed by the AG.5
5 In a brief footnote, the AG also asserts (Opp. 15, n.3) that the solicitation describing the conditions was not “final agency action,” 5 U.S.C. § 704. That is wrong, but in any event, the AG has waived such a defense by advancing it with only a conclusory, “one-sentence assertion that lacks citation to record evidence.” Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009).
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2. The Notice And Access Conditions Violate The Separation Of Powers Because DOJ lacked the authority to impose the notice and access conditions, its attempt to do so represents an unlawful attempt to exercise authority assigned only to Congress. Mem. 17-18. The AG’s only response to this is to double down on its assertion that Congress did, in fact, authorize it to issue the conditions at issue. Opp. 15-16. But, as explained above, DOJ has failed to identify any authority for its actions. The conditions therefore necessarily transgress the Constitution’s distribution of power between the Legislature and the Executive. B. The Section 1373 Condition Is Likewise Unauthorized And Unconstitutional The AG is no more persuasive in arguing that the JAG statute’s requirement that applicants certify compliance with “all applicable Federal laws” extends to § 1373. Congress chose not to make the JAG program a compliance mechanism for “all Federal laws,” instead limiting the required certifications to “applicable Federal laws.” Mem. 19. This language points to the body of laws governing federal grantmaking that, by their express terms, apply to recipients of federal funds. That reading accords with the Certified Standard Assurances DOJ has long required grantees to complete, which (except for § 1373) requires certifications concerning this exact set of grant-specific laws. Mem. 19-20; see also RJN Ex. K at 41 (Certified Standard Assurances form). The AG does not dispute that Congress intended “applicable” to perform this limiting function. Instead, he argues that besides making certain laws applicable by statute, Congress also “delegate[d]” the AG power to make additional laws applicable as he sees fit—treating the U.S. Code like a menu from which he may select laws to enforce through the JAG program. Opp. 13. That breathtakingly broad reading is at war with the structure and purpose of the JAG statute. “[R]ather than impose a ‘one size fits all’ solution,” the JAG statute’s formula-based design is meant to constrain the AG’s discretion, while providing state and local governments “flexibility to spend money for programs that work for them.” H.R. Rep. No. 109-233, at 89 (2005); see also Mem.
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12. Unable to reconcile his reading of “applicable” with that structure and purpose, the AG locates (Opp. 12-13) his claim to unfettered authority in Congress’s instruction that the AG specify the “form” of the JAG “application.” 42 U.S.C. § 3752(a). But such a modest assignment of a classically ministerial function—literally to specify “form,” not substance—is hardly a delegation of sweeping power to repurpose the JAG program to impose the very “one size fits all” policy dictates that Congress rejected. It certainly falls short of a “clear statement” from Congress inviting the AG to invade a “traditionally sensitive area[]” and alter “the federal balance.” Gregory, 501 U.S. at 461.
The AG’s attempt to dispute the nature of the laws cited in the Certified Standard Assurances (Opp. 13), simply proves Chicago’s point: The “laws relating to civil rights protections” are the various anti-discrimination provisions that Congress made applicable to recipients of federal financial assistance (e.g., 42 U.S.C. § 2000d); the laws related to “the treatment of displaced persons” are those that govern the rights of individuals displaced by programs receiving federal funds (e.g., id. § 4604(c)); and the laws related to “political activities of government employees” are those that apply specifically to state and local employees whose employment is made possible by federal funds (e.g. 5 U.S.C. § 1501(4)). It is true, as DOJ asserts (Opp. 13) that these laws are “wide-ranging,” but that is immaterial; what matters is that each contains a statutory provision making it applicable to recipients of federal funds. See, e.g. 42 U.S.C. § 2000d (prohibiting discrimination on various grounds “under any program or activity receiving Federal financial assistance”).6 Section 1373 stands alone as the only federal law the AG seeks to apply to grantees that Congress itself did not tie to federal funds.
6 See also 29 U.S.C. § 794(a) (applying to “any program or activity receiving Federal financial assistance”); 20 U.S.C. § 1681(a) (“any educational program or activity receiving Federal financial assistance”); 42 U.S.C. § 6102 (“any program or activity receiving Federal financial assistance”); id. § 3789d(c) (“in connection with any programs or activity funded in whole or in part with funds made available under this chapter”); id. § 10604 (“Each recipient of sums under this chapter.”); id. § 5671 et seq. (setting forth general administrative provisions for certain DOJ funding programs); id. § 13925(b)(13) (setting forth conditions for Violence Against Women Act grants); id. § 4322(D) (applying to “major Federal action funded under a program of grants to States”); id. § 4604(c) (agency may “withhold [its] approval of any Federal financial assistance”); 54 U.S.C. § 306108 (requiring certain actions “prior to the approval of the expenditure of any Federal funds”); id.
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Moreover, even if DOJ’s unjustifiably broad interpretation of “applicable” were colorable, the § 1373 condition would fail for yet another reason: Section 1373 itself is unconstitutional. The statute impermissibly “requir[es] [state and local officers] to provide information that belongs to [Chicago] and is available to them only in their official capacity.” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). This is classically improper federal intrusion in local matters. Mem. 20.7
The AG relies on City of New York v. United States, 179 F.3d 29 (2d Cir. 1999). But that decision departs from the commandeering analysis that is required in this Circuit. As the Seventh Circuit has instructed, “[w]hen the national government conscripts the legislative or executive arms of a state, the law violates a structural immunity and ‘a “balancing” analysis is inappropriate.’” Travis v. Reno, 163 F.3d 1000, 1003 (7th Cir. 1998). The decision in New York, however, relies on precisely that kind of balancing. There, the Second Circuit considered the degree to which § 1373 intruded on “integral” operations of city government, and concluded that it barely did—all while suggesting that if the conflicting city law played a more prominent role, the analysis might have turned out differently. New York, 179 F.3d at 37. That analysis is foreclosed by Travis and cannot control here.
Moreover, the Second Circuit dismissed concerns that § 1373 might require affirmative conduct by states and cities, and analyzed the statute solely as a negative restriction. New York, 179 F.3d at 35. But mandated action and inaction cannot be so neatly distinguished for § 1373. Cf. Alton R. Co. v. United States, 287 U.S. 229, 235 (1932) (order “negative in form” was “in effect, an affirmative one.”). The provision was deliberately tailored to induce local officials to share sensitive information with the federal government. See S. Rep. No. 104-249, at 19-20 (1996) (seeking “a
§ 312502(b)(1) (requiring certain actions in connection with Federal “financial assistance”); 5 U.S.C. § 1501(4) (applying to any “individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States”). 7 The AG misunderstands this argument. The problem is not, as he says (Opp. 13-14), that conditioning funding on compliance with § 1373 amounts to unconstitutional commandeering. Rather, it is that § 1373 is itself facially unconstitutional and so cannot be saved by the AG repurposing it as a grant condition. See Branch v. Smith, 538 U.S. 254, 281 (2003) (state law not applicable despite phrase “as state law requires” because state law was unconstitutional and therefore “a legal nullity”).
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cooperative effort” to enforce federal immigration law through “[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies”). And DOJ itself has pressed an especially aggressive (though mistaken) view of the actions that § 1373 that requires. As early as October 2016, DOJ suggested that localities must affirmatively instruct employees that they could freely communicate with federal officials. RJN Ex. O at 1 (“Your personnel must be informed … federal law does not allow any government entity or official to prohibit” sharing status information with federal officials). And in explaining recently why Miami’s § 1373 certification passed muster, the AG pointed to Miami’s decision to cooperate with ICE detainer requests, see RJN II, Ex. A, further implying his belief that § 1373 requires affirmative cooperation. The Constitution forbids commandeering City law enforcement in this way.
C. The Notice And Access Conditions Violate The Spending Clause 1. Neither Condition Is Germane To The Purposes Of The JAG Program
The AG does not dispute that the JAG program is intended to provide “flexibility” for grantees to set policing priorities and to broadly distribute funds based on population and crime statistics. Nor does he contend the notice and access conditions are related to those goals. Rather, he says (Opp. 5) that the JAG grant also advances the broader goal of promoting “criminal justice,” to which the notice and access conditions supposedly relate. The AG’s claim fails on its own terms, as the conditions largely seek to enforce civil, not criminal laws. More fundamentally, it misses the point. The defining feature of the JAG program is not that it promotes “criminal justice” generally, but the way it does so. What distinguishes the JAG grant from other criminal justice grants is its formula model and its emphasis on local flexibility. The germaneness inquiry would be meaningless if the federal government could frame a programmatic objective at the highest level of generality to justify a condition that overtly contradicts the program’s more specific purposes. A condition on the program must relate to the statute considered as a whole, not to a generic phrase like “criminal
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justice” snipped from a single provision of the statutory text, see Opp. 18 (citing only 42 U.S.C. § 3751(a)(1)), let alone to an unrelated statute like the INA, see Opp. 18 (citing INA provisions).
2. DOJ Has Effectively Conceded That Its Original Notice And Access Conditions Would Violate The Fourth Amendment
The grant solicitation states unequivocally that JAG awards “will include” conditions requiring recipients to “provide at least 48 hours’ advance notice” of an “alien’s” release, and to permit ICE on-demand access to any “detention facility” to interrogate non-citizens. RJN Ex. K at 30. As Chicago explained, such conditions would routinely require prolonging detention, thereby violating the Fourth Amendment. Mem. 14-17; accord City of El Cenizo v. Texas, No. SA-17-CV-404, slip op. at 85 (W.D. Tex. Aug. 30, 2017), ECF No. 189 (Fourth Amendment bars extending seizure).
The AG has responded not by disputing that such prolonged detention is unconstitutional but by effectively conceding the point and then rewriting the conditions. The rewritten conditions first appeared in award documents for other jurisdictions issued the day before the AG filed his opposition. Hanson Decl., Exs. A, B. Instead of insisting on “at least 48 hours’ advance notice,” the new notice condition requests notice “as early as practicable (at least 48 hours, if possible).” Id., Ex. A at 18 (emphasis added). And both new conditions, for the first time, state that no grantee is required to “maintain (or detain) any individual in custody beyond the date and time the individual would have been released” absent the conditions. Id. This reformulation reveals the AG’s awareness that his earlier formulation was unconstitutional, and follows a now-familiar pattern of first asserting sweeping authority, only to claim a narrower objective when the original claim’s weakness is exposed in litigation. E.g., Washington v. Trump, 847 F.3d 1151, 1165-1166 (9th Cir. 2017) (declining to rely on federal Executive’s “shifting interpretations”); Cty. of Santa Clara v. Trump, 2017 WL 1459081, at *27 (N.D. Cal. Apr. 25, 2017) (criticizing this “schizophrenic approach”).
These latest developments do not, however, resolve Chicago’s Fourth Amendment claim because Chicago cannot and need not rely on the AG’s as-yet unsubstantiated promise regarding
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Chicago’s JAG award documents. Cf. Cty. of Santa Clara v. Trump, 2017 WL 3086064, at *8 (N.D. Cal. July 20, 2017) (describing similar promises regarding scope of “Sanctuary Cities” Executive Order as “illusory”). The AG bears a “heavy burden” of demonstrating that the original notice and access conditions “‘cannot reasonably be expected’” to appear in Chicago’s award documents. Ciarpaglini v. Norwood, 817 F.3d 541, 545 (7th Cir. 2016). Given the clear language of the grant solicitation, and Chicago’s experience to date, that burden remains unmet. In the absence of unequivocal evidence that the Fourth Amendment defects in the original conditions have been cured, Chicago remains entitled to an injunction restraining the AG from imposing the conditions on its FY2017 JAG funds—or on those of any other eligible jurisdiction, see infra Part IV. See Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (where cessation takes the form of a policy change, rather than amendment to statute or regulation, it does not “eliminate the controversy.”). II. CHICAGO WILL BE IRREPARABLY HARMED ABSENT PRELIMINARY RELIEF
Chicago faces a clear threat of irreparable harm. As the AG recently declared, Chicago must either “reorder[] [its] law enforcement practice” or “los[e] federal grant money” for itself and eleven neighboring localities. Fahey Decl. Ex. A. Both of those roads lead to irreparable injury: a subjugation of the City’s policy preferences to DOJ’s, and a precipitous loss of cooperation between officers and immigrant communities, on the one hand; or police officers with inadequate equipment and technology, on the other. Mem. 22-24; see also El Cenizo, slip op. at 89-90. Merely being forced to make that kind of “unreasonable choice” is itself “irreparable harm.” Cty. of Santa Clara, 2017 WL 1459081, at *27-*28; accord Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1058-1059 (9th Cir. 2009). All the more so here, where the federal government has targeted another sovereign that has the right to set criminal justice policy “free from federal interference,” Kelly v. Robinson, 479 U.S. 36, 49 (1986). See Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001) (where “sovereign interests and public policies [are] at stake, … the harm the [City] stands to suffer [is] irreparable”).
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None of the AG’s arguments defeats that showing of irreparable harm. His first assertion— that the risk of harm to the City is “speculative or conjectural,” Opp. 21—is demonstrably wrong. DOJ acknowledges (Opp. 4, 7) that the City must, within “45 days” of receiving an award letter, decide “whether to accept or reject” the funding and conditions. There is no third option: abandon the Welcoming City Ordinance or forever forgo crucial grant dollars that will be reallocated to other grantees. It is certain—not speculative—that the harms from this unlawful choice will occur.8
Next, the AG asserts that because a coercion-based Spending Clause violation is sufficient to show irreparable harm, it must also be necessary. There is no irreparable harm, he says, because the “amount of funding at stake” does not meet the “threshold for establishing unconstitutional coercion.” Opp. 22. This is a stark reversal from the Administration’s prior (public) characterizations of this “defunding” and “withholding grants” as a “weapon” that would “get cities into … compliance.” Santa Clara, 2017 WL 1459081, at *14-*15 (quoting the President, AG, and Press Secretary). In any event, “unconstitutional coercion” is just one way the conditions could cause irreparable harm, not the only way. Irreparable injury exists anytime the federal government unlawfully interferes with a locality’s “regulatory powers” or ability to set “public policies”— regardless of whether “unconstitutional coercion” is involved. Kansas, 249 F.3d at 1227-1228. The AG’s conditions—which demand that Chicago repeal its Welcoming City Ordinance—do just that.
The AG next claims (Opp. 22-23) that the City’s harm from having to shutter its Force for Good program or dismiss its Grants Research Specialist is not “substantial” enough to support an injunction. To start, the AG ignores the harm from being unable to purchase essential police equipment, such as ShotSpotter technology Chicago seeks to fund this year, Fahey Decl., Ex. B. And in any event, injunctions are not limited to large injuries; they issue to prevent irreparable ones: 8 For the same reason, the AG’s claim—mentioned in passing in the introduction (Opp. 4) but never again— that harm to Chicago is not “immediate” is baffling. Irreparable harm is sufficiently immediate if it will be suffered “before a decision on the merits can be rendered.” Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 22 (2008). Here it is undisputed that Chicago must either change its laws or lose funds within 45 days.
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“[I]t is not so much the magnitude but the irreparability that counts for purposes of a preliminary injunction.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012). The one case the AG cites does not say otherwise. Rather, it explains that the “threat [i.e., likelihood] of irreparable injury”—not the magnitude of the harm—must be “substantial.” Ditton v. Rusch, 2014 WL 4435928, at *3 (N.D. Ill. Sept. 9, 2014). Here the threat is not just substantial but certain.
Finally, the AG asserts (Opp. 23) that increased budgetary uncertainty can never qualify as irreparable harm because there is always some level of uncertainty in “any municipality’s fiscal affairs.” But the fact that some uncertainty not “attributable to the challenged” conditions may exist in Chicago’s budget does not give the AG carte blanche to inflict more. The AG does not dispute that the new conditions will “exacerbate” budgetary uncertainty by putting millions of critical dollars into a state of limbo; they thus “inflict[] cognizable irreparable injury for purposes of a preliminary injunction” M.R. v. Dreyfus, 697 F.3d 706, 729 (9th Cir. 2012).9 III. THE EQUITIES AND THE PUBLIC INTEREST FAVOR PRELIMINARY RELIEF
The AG does not dispute the significance of Chicago’s interest in its own sovereignty or its residents’ and officers’ interests in safe and effective community policing. See Mem. 25. Instead, he asserts (Opp. 24) that those must give way to the federal government’s generic interest “in enforcing federal law.” But that interest only exists where the enforcement itself is lawful. See Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). Where the opposite is true, as here, the “public interest is served by ‘curtailing [the] unlawful executive action.’” Hawaii v. Trump, 859 F.3d 741, 784 (9th Cir. 2017) (quoting Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015)).
9 The AG tacks a quote from American Hospital Association v. Harris, 625 F.2d 1328 (7th Cir. 1980), onto the end of his discussion (Opp. 23), but fails to explain how it advances his position. Harris states that “ordinarily” the costs of “attempted compliance with government regulation” will not constitute irreparable harm. Id. at 1331. But that is true only because ordinarily when an entity complies with a regulation “all that is lost is profits,” which may be generally be replaced by money damages. A.O. Smith Corp. v. FTC, 530 F.2d 515, 527 (3d Cir. 1976), cited in Harris, 625 F.2d at 1331. By contrast, where (as here) compliance requires “significant changes in a[n entity’s] operations” or threatens “permanently injur[y] … [to] its goodwill,” those harms do “constitute irreparable injury.” Id. at 527-528.
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Moreover, the AG’s repeated refrain (Opp. 24-25) that the new conditions will deliver “concrete” law enforcement benefits is simply wrong. Solving crimes and prosecuting criminals is impossible without community cooperation. See Hannigan Decl. ¶ 5. When victims and witnesses are afraid to come forward, offenders—often violent ones—walk free. Forcing Chicago to repeal the Welcoming City Ordinance will generate fear within immigrant communities, undermining cooperation with law enforcement. And it will do so not (as the AG sometimes claims, Opp. 18, 24) in service of “reducing violent crime” or targeting “criminal aliens” but (as he admits in a footnote, Opp. 21 n.5) primarily to enforce “purely civil laws” against non-citizen pre-trial detainees. The public will be disserved by dismantling the City’s policies and sapping its crime-fighting effectiveness in order to advance the AG’s fixation with civil immigration enforcement. IV. THE REQUESTED INJUNCTION SHOULD BE NATIONWIDE
Finally, the AG argues (Opp. 25) that any preliminary relief should be limited to Chicago. But Courts have repeatedly issued nationwide preliminary injunctions against executive actions that are likely unlawful or unconstitutional to preserve the uniform application of federal law, particularly in the immigration context. E.g., IRAP v. Trump, 857 F.3d 554, 605 (4th Cir.), cert. granted, 137 S. Ct. 2080 (2017); Texas v. United States, 787 F.3d 733, 769 (5th Cir. 2015). Here, the AG expressly invokes the Executive Branch’s authority under the immigration laws (Opp. 5), and seeks to impose unlawful immigration-related conditions on a program that Congress intended to be administered on a consistent basis nationwide. See supra at 2. Indeed, because every grantee receives a formula-based percentage of a fixed total appropriation, each grantee’s allocation will rise or fall depending on which jurisdictions claim funds. That allocation process binds all JAG applicants’ fates together, underscoring the need for uniformity. This Court should not artificially constrain preliminary relief in this case, creating one set of conditions for Chicago and another for the rest of the country.
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CONCLUSION The motion for a preliminary injunction should be granted.

August 31, 2017
JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700

Attorneys for the City of Chicago

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Case: 1:17-cv-05720 Document #: 69 Filed: 08/31/17 Page 23 of 23 PageID #:868 CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was filed electronically using the CM/ECF system on August 31, 2017, which automatically notifies and effects service on all counsel of record for the Defendant, who is deemed to have consented to electronic service via the Court’s CM/ECF system per L.R. 5.9.
/s/ Edward N. Siskel Edward N. Siskel
Attorney for Plaintiff
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Case: 1:17-cv-05720 Document #: 69-1 Filed: 08/31/17 Page 1 of 11 PageID #:869

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
Plaintiff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
Defendant.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

STATUTORY ADDENDUM TO REPLY BRIEF IN SUPPO RT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Provisions of the U.S. Code relevant to this case are currently undergoing an editorial reclassification, in which certain provisions are being consolidated into a new Title 34. That reclassification alters citations, but does not repeal or amend any law. The new citations become effective on September 1, 2017. For consistency with already-filed briefs by Plaintiff the City of Chicago and the Attorney General, Chicago’s reply cites to the version of the U.S. Code in effect until September 1, 2017. To aid the Court, Chicago submits the attached addendum of relevant Code provisions, listing their existing and future citations.

Case: 1:17-cv-05720 Document #: 69-1 Filed: 08/31/17 Page 2 of 11 PageID #:870
42 U.S.C. § 3751 (effective until August 31, 2017), transferred to 34 U.S.C. § 10152 (effective on September 1, 2017)
(a) Grants authorized (1) In general From amounts made available to carry out this part, the Attorney General may, in accordance with the formula established under section 3755 of this title, make grants to States and units of local government, for use by the State or unit of local government to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following programs: (A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams. (2) Rule of construction Paragraph (1) shall be construed to ensure that a grant under that paragraph may be used for any purpose for which a grant was authorized to be used under either or both of the programs specified in section 3750(b) of this title, as those programs were in effect immediately before January 5, 2006.
(b) Contracts and subawards A State or unit of local government may, in using a grant under this part for purposes authorized by subsection (a) of this section, use all or a portion of that grant to contract with or make one or more subawards to one or more--
(1) neighborhood or community-based organizations that are private and nonprofit; or (2) units of local government. (3) Repealed. Pub.L. 109-271, § 8(h)(3), Aug. 12, 2006, 120 Stat. 767 (c) Program assessment component; waiver (1) Each program funded under this part shall contain a program assessment component, developed pursuant to guidelines established by the Attorney General, in coordination with the National Institute of Justice. (2) The Attorney General may waive the requirement of paragraph (1) with respect to a program if, in the opinion of the Attorney General, the program is not of sufficient size to justify a full program assessment. (d) Prohibited uses Notwithstanding any other provision of this Act, no funds provided under this part may be used, directly or indirectly, to provide any of the following matters:

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(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety. (2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order--
(A) vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters); (B) luxury items; (C) real estate; (D) construction projects (other than penal or correctional institutions); or (E) any similar matters. (e) Administrative costs Not more than 10 percent of a grant made under this part may be used for costs incurred to administer such grant. (f) Period The period of a grant made under this part shall be four years, except that renewals and extensions beyond that period may be granted at the discretion of the Attorney General. (g) Rule of construction Subparagraph (d)(1) shall not be construed to prohibit the use, directly or indirectly, of funds provided under this part to provide security at a public event, such as a political convention or major sports event, so long as such security is provided under applicable laws and procedures.
42 U.S.C. § 3752 (effective until August 31, 2017), transferred to 34 U.S.C. § 10153 (effective September 1, 2017)
(a) In general To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
(1) A certification that Federal funds made available under this part will not be used to supplant State or local funds, but will be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities. (2) An assurance that, not fewer than 30 days before the application (or any amendment to the application) was submitted to the Attorney General, the application (or amendment) was submitted for review to the governing body of the State or unit of local government (or to an organization designated by that governing body). (3) An assurance that, before the application (or any amendment to the application) was submitted to the Attorney General--
(A) the application (or amendment) was made public; and (B) an opportunity to comment on the application (or amendment) was provided to citizens and to neighborhood or community-based organizations, to the extent applicable law or established procedure makes such an opportunity available.

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(4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require. (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, if qualified under regulations promulgated by the Attorney General), that--
(A) the programs to be funded by the grant meet all the requirements of this part; (B) all the information contained in the application is correct; (C) there has been appropriate coordination with affected agencies; and (D) the applicant will comply with all provisions of this part and all other applicable Federal laws. (6) A comprehensive Statewide plan detailing how grants received under this section will be used to improve the administration of the criminal justice system, which shall-(A) be designed in consultation with local governments, and representatives of all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, corrections personnel, and providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services; (B) include a description of how the State will allocate funding within and among each of the uses described in subparagraphs (A) through (G) of section 3751(a)(1) of this title; (C) describe the process used by the State for gathering evidence-based data and developing and using evidence-based and evidence-gathering approaches in support of funding decisions; (D) describe the barriers at the State and local level for accessing data and implementing evidence-based approaches to preventing and reducing crime and recidivism; and (E) be updated every 5 years, with annual progress reports that--
(i) address changing circumstances in the State, if any; (ii) describe how the State plans to adjust funding within and among each of the uses described in subparagraphs (A) through (G) of section 3751(a)(1) of this title; (iii) provide an ongoing assessment of need; (iv) discuss the accomplishment of goals identified in any plan previously prepared under this paragraph; and (v) reflect how the plan influenced funding decisions in the previous year. (b) Technical assistance (1) Strategic planning Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments requesting support to develop and implement the strategic plan required under subsection (a)(6). The Attorney General may enter into agreements with 1 or more non-governmental organizations to provide technical assistance and training under this paragraph.

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(2) Protection of constitutional rights Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments, including any agent thereof with responsibility for administration of justice, requesting support to meet the obligations established by the Sixth Amendment to the Constitution of the United States, which shall include--
(A) public dissemination of practices, structures, or models for the administration of justice consistent with the requirements of the Sixth Amendment; and (B) assistance with adopting and implementing a system for the administration of justice consistent with the requirements of the Sixth Amendment. (3) Authorization of appropriations For each of fiscal years 2017 through 2021, of the amounts appropriated to carry out this subpart, not less than $5,000,000 and not more than $10,000,000 shall be used to carry out this subsection.
42 U.S.C. § 3753 (effective until August 31, 2017), transferred to 34 U.S.C. § 10154 (effective September 1, 2017)
The Attorney General shall not finally disapprove any application (or any amendment to that application) submitted under this part without first affording the applicant reasonable notice of any deficiencies in the application and opportunity for correction and reconsideration.
42 U.S.C. § 3754 (effective until August 31, 2017), transferred to 34 U.S.C. § 10155 (effective September 1, 2017)
The Attorney General shall issue rules to carry out this part. The first such rules shall be issued not later than one year after the date on which amounts are first made available to carry out this part.
42 U.S.C. § 3755 (effective until August 31, 2017), transferred to 34 U.S.C. § 10156 (effective September 1, 2017)
(a) Allocation among States (1) In general Of the total amount appropriated for this part, the Attorney General shall, except as provided in paragraph (2), allocate-(A) 50 percent of such remaining amount to each State in amounts that bear the same ratio of-(i) the total population of a State to-(ii) the total population of the United States; and (B) 50 percent of such remaining amount to each State in amounts that bear the same ratio of--

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(i) the average annual number of part 1 violent crimes of the Uniform Crime Reports of the Federal Bureau of Investigation reported by such State for the three most recent years reported by such State to-(ii) the average annual number of such crimes reported by all States for such years. (2) Minimum allocation If carrying out paragraph (1) would result in any State receiving an allocation less than 0.25 percent of the total amount (in this paragraph referred to as a “minimum allocation State”), then paragraph (1), as so carried out, shall not apply, and the Attorney General shall instead-(A) allocate 0.25 percent of the total amount to each State; and (B) using the amount remaining after carrying out subparagraph (A), carry out paragraph (1) in a manner that excludes each minimum allocation State, including the population of and the crimes reported by such State. (b) Allocation between States and units of local government Of the amounts allocated under subsection (a) of this section-(1) 60 percent shall be for direct grants to States, to be allocated under subsection (c) of this section; and (2) 40 percent shall be for grants to be allocated under subsection (d) of this section. (c) Allocation for State governments (1) In general Of the amounts allocated under subsection (b)(1) of this section, each State may retain for the purposes described in section 3751 of this title an amount that bears the same ratio of-(A) total expenditures on criminal justice by the State government in the most recently completed fiscal year to-(B) the total expenditure on criminal justice by the State government and units of local government within the State in such year. (2) Remaining amounts Except as provided in subsection (e)(1) of this section, any amounts remaining after the allocation required by paragraph (1) shall be made available to units of local government by the State for the purposes described in section 3751 of this title. (d) Allocations to local governments (1) In general Of the amounts allocated under subsection (b)(2) of this section, grants for the purposes described in section 3751 of this title shall be made directly to units of local government within each State in accordance with this subsection, subject to subsection (e) of this section. (2) Allocation (A) In general From the amounts referred to in paragraph (1) with respect to a State (in this subsection referred to as the “local amount”), the Attorney General shall allocate to each unit of local government an amount which bears the same ratio to such share as the average annual number of part 1 violent crimes reported by such unit to the Federal Bureau of Investigation for the 3 most recent calendar years for which such data is available bears to the number of part 1 violent crimes reported by all units of

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local government in the State in which the unit is located to the Federal Bureau of Investigation for such years.
(B) Transitional rule Notwithstanding subparagraph (A), for fiscal years 2006, 2007, and 2008, the Attorney General shall allocate the local amount to units of local government in the same manner that, under the Local Government Law Enforcement Block Grants program in effect immediately before January 5, 2006, the reserved amount was allocated among reporting and nonreporting units of local government. (3) Annexed units
If a unit of local government in the State has been annexed since the date of the collection of the data used by the Attorney General in making allocations pursuant to this section, the Attorney General shall pay the amount that would have been allocated to such unit of local government to the unit of local government that annexed it. (4) Resolution of disparate allocations
(A) Notwithstanding any other provision of this part, if-(i) the Attorney General certifies that a unit of local government bears more than 50 percent of the costs of prosecution or incarceration that arise with respect to part 1 violent crimes reported by a specified geographically constituent unit of local government; and
(ii) but for this paragraph, the amount of funds allocated under this section to--
(I) any one such specified geographically constituent unit of local government exceeds 150 percent of the amount allocated to the unit of local government certified pursuant to clause (i); or (II) more than one such specified geographically constituent unit of local government exceeds 400 percent of the amount allocated to the unit of local government certified pursuant to clause (i),
then in order to qualify for payment under this subsection, the unit of local government certified pursuant to clause (i), together with any such specified geographically constituent units of local government described in clause (ii), shall submit to the Attorney General a joint application for the aggregate of funds allocated to such units of local government. Such application shall specify the amount of such funds that are to be distributed to each of the units of local government and the purposes for which such funds are to be used. The units of local government involved may establish a joint local advisory board for the purposes of carrying out this paragraph. (B) In this paragraph, the term “geographically constituent unit of local government” means a unit of local government that has jurisdiction over areas located within the boundaries of an area over which a unit of local government certified pursuant to clause (i) has jurisdiction.
(e) Limitation on allocations to units of local government (1) Maximum allocation

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No unit of local government shall receive a total allocation under this section that exceeds such unit's total expenditures on criminal justice services for the most recently completed fiscal year for which data are available. Any amount in excess of such total expenditures shall be allocated proportionally among units of local government whose allocations under this section do not exceed their total expenditures on such services. (2) Allocations under $10,000 If the allocation under this section to a unit of local government is less than $10,000 for any fiscal year, the direct grant to the State under subsection (c) of this section shall be increased by the amount of such allocation, to be distributed (for the purposes described in section 3751 of this title) among State police departments that provide criminal justice services to units of local government and units of local government whose allocation under this section is less than $10,000. (3) Non-reporting units No allocation under this section shall be made to a unit of local government that has not reported at least three years of data on part 1 violent crimes of the Uniform Crime Reports to the Federal Bureau of Investigation within the immediately preceding 10 years. (f) Funds not used by the State If the Attorney General determines, on the basis of information available during any grant period, that any allocation (or portion thereof) under this section to a State for such grant period will not be required, or that a State will be unable to qualify or receive funds under this part, or that a State chooses not to participate in the program established under this part, then such State's allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State, giving priority to those jurisdictions with the highest annual number of part 1 violent crimes of the Uniform Crime Reports reported by the unit of local government to the Federal Bureau of Investigation for the three most recent calendar years for which such data are available. (g) Special rules for Puerto Rico (1) All funds set aside for Commonwealth government Notwithstanding any other provision of this part, the amounts allocated under subsection (a) of this section to Puerto Rico, 100 percent shall be for direct grants to the Commonwealth government of Puerto Rico. (2) No local allocations Subsections (c) and (d) of this section shall not apply to Puerto Rico. (h) Units of local government in Louisiana In carrying out this section with respect to the State of Louisiana, the term “unit of local government” means a district attorney or a parish sheriff. (i) Part 1 violent crimes to include human trafficking For purposes of this section, the term “part 1 violent crimes” shall include severe forms of trafficking in persons (as defined in section 7102 of Title 22).

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42 U.S.C. § 3756 (effective until August 31, 2017), transferred to 34 U.S.C. § 10157 (effective September 1, 2017)
(a) Of the total amount made available to carry out this part for a fiscal year, the Attorney General shall reserve not more than--
(1) $20,000,000, for use by the National Institute of Justice in assisting units of local government to identify, select, develop, modernize, and purchase new technologies for use by law enforcement, of which $1,000,000 shall be for use by the Bureau of Justice Statistics to collect data necessary for carrying out this part; and (2) $20,000,000, to be granted by the Attorney General to States and units of local government to develop and implement antiterrorism training programs. (b) Of the total amount made available to carry out this part for a fiscal year, the Attorney General may reserve not more than 5 percent, to be granted to 1 or more States or units of local government, for 1 or more of the purposes specified in section 3751 of this title, pursuant to his determination that the same is necessary-(1) to combat, address, or otherwise respond to precipitous or extraordinary increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula established under section 3755 of this title.
42 U.S.C. § 3757 (effective until August 31, 2017), transferred to 34 U.S.C. § 10158 (effective September 1, 2017)
(a) Trust fund required A State or unit of local government shall establish a trust fund in which to deposit amounts received under this part. (b) Expenditures
(1) In general Each amount received under this part (including interest on such amount) shall be expended before the date on which the grant period expires. (2) Repayment A State or unit of local government that fails to expend an entire amount (including interest on such amount) as required by paragraph (1) shall repay the unexpended portion to the Attorney General not later than 3 months after the date on which the grant period expires. (3) Reduction of future amounts If a State or unit of local government fails to comply with paragraphs (1) and (2), the Attorney General shall reduce amounts to be provided to that State or unit of local government accordingly. (c) Repaid amounts Amounts received as repayments under this section shall be subject to section 3712g of this title as if such amounts had not been granted and repaid. Such amounts shall be deposited in the Treasury in a dedicated fund for use by the Attorney General to carry out this part. Such funds are hereby made available to carry out this part.

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42 U.S.C. § 3712 (effective until August 31, 2017), transferred to 34 U.S.C. § 10102 (effective September 1, 2017)
(a) Specific, general and delegated powers The Assistant Attorney General shall--
(1) publish and disseminate information on the conditions and progress of the criminal justice systems; (2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants. (b) Annual report to President and Congress The Assistant Attorney General shall submit an annual report to the President and to the Congress not later than March 31 of each year.
8 U.S.C. § 1373
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries

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The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

 
 Case: 1:17-cv-05720 Document #: 78 Filed: 09/15/17 Page 1 of 41 PageID #:1116

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,
Defendant.

Case No. 17 C 5720 Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER This case involves the intersection between federal immigration policies and local control over policing. Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, seeks to impose new conditions on an annual federal grant relied on by the City of Chicago for law enforcement initiatives. These conditions require additional cooperation with federal immigration officials and directly conflict with Chicago’s local policy, codified in its Welcoming City Ordinance, which restricts local officials’ participation in certain federal immigration efforts. Chicago claims its policies engender safer streets by fostering trust and cooperation between the immigrant community and local police. Chicago’s policies are at odds with the immigration enforcement

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priorities and view of public safety espoused by the Attorney General.
Against this backdrop, the City of Chicago claims that these new conditions are unlawful and unconstitutional, and implores this Court to grant a preliminary injunction enjoining their imposition. For the reasons described herein, the Court grants in part, and denies in part, the City of Chicago’s Motion for a Preliminary Injunction.
I. FACTUAL BACKGROUND A. The Edward Byrne Memorial
Justice Assistance Grant Program The federal grant at issue is awarded by the Edward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG grant”). See, 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). Named after a fallen New York City police officer, the Byrne JAG grant supports state and local law enforcement efforts by providing additional funds for personnel, equipment, training, and other criminal justice needs. See, 34 U.S.C. § 10152 (formerly 42 U.S.C. § 3751). The Byrne JAG grant is known as a formula grant, which means funds are awarded based on a statutorily defined formula. See, 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755). Each state’s allocation is keyed to its population and the amount of reported violent crimes. Ibid. The
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City of Chicago (the “City”) has received Byrne JAG funds since 2005, including $2.33 million last year on behalf of itself and neighboring political entities. (See, Decl. of Larry Sachs, ¶¶ 3, 11-12.) The City has used these funds to buy police vehicles and to support the efforts of non-profit organizations working in high crime communities. (See, id. ¶ 4.)
B. New Conditions on the Byrne JAG Grant In late July 2017, the Attorney General announced two new conditions on every grant provided by the Byrne JAG program. (See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The two new conditions require, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations, and, second, that local authorities provide immigration agents with access to City detention facilities and individuals detained therein. Additionally, a condition on Byrne JAG funds was added last year that requires the City to certify compliance with a federal statute, 8 U.S.C. § 1373, which prohibits local government and law enforcement officials from restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual. (See, FY 2016 Chicago/Cook County JAG Program Grant
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Award, dated Sept. 7, 2017, at 2-13, Ex. C to Decl. of Alan
Hanson (“Hanson Decl.”).) The condition to certify compliance
is also imposed on 2017 Byrne JAG funds. (See, Byrne JAG
Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The
exact text of the three conditions is as follows:
(1) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable -- provide the requested notice to DHS.
(2) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.
(3) The applicant local government must submit the required ‘Certification of Compliance with 8 U.S.C. 1373’ (executed by the chief legal officer of the local government).
(Byrne JAG Program Grant Award for County of Greenville, Special
Conditions (“Byrne Conditions”), ¶¶ 53, 55-56, Ex. A to Hanson
Decl.; see also Hanson Decl., ¶ 6.) These conditions will be
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referred to respectively as the notice condition, the access
condition, and the compliance condition. The City claims all
three conditions are unlawful and unconstitutional, even though
it acquiesced to the compliance condition when accepting the
2016 Byrne JAG funds.
The compliance condition requires the City to certify
compliance with Section 1373. (Byrne Conditions ¶ 53.) Section
1373 is titled “Communication between government agencies and
the Immigration and Naturalization Service” and provides as
follows, 8 U.S.C. § 1373:
(a) In General
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.
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(c) Obligation to Respond to Inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
C. The City’s Welcoming Ordinance Chicago’s Welcoming City Ordinance (the “Ordinance”) is a codified local policy that restricts the sharing of immigration status between residents and police officers. See, Chicago, Illinois, Municipal Code § 2-173-005 et seq. The explicit purpose of the Ordinance is to “clarify what specific conduct by City employees is prohibited because such conduct significantly harms the City’s relationship with immigrant communities.” Id. § 2-173-005. The Ordinance reflects the City’s belief that the “cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City” and that the “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all its residents.” Ibid. Since the mid-1980s, the City has had in place some permutation of this policy, typically in the form of executive orders that prohibited City agents and agencies from
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requesting or disseminating information about individuals’ citizenship. (See, Executive Order 85-1, 89-6, Exs. A-B to Pl.’s Br.) First codified in Chicago’s Municipal Code in 2006, the Ordinance was augmented in 2012 to refuse immigration agents access to City facilities and to deny immigration detainer requests unless certain criteria were met. See, Chicago, Illinois Municipal Code § 2-173-005. An immigration detainer request is a request from Immigration and Customs Enforcement (“ICE”), asking local law enforcement to detain a specific individual for up to 48 hours to permit federal assumption of custody.
The Ordinance prohibits any “agent or agency” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” Id. § 2-173-020. It goes on to forbid any agent or agency from “disclos[ing] information regarding the citizenship or immigration status of any person.” Id. § 2-173-030. The Ordinance specifically characterizes “[c]ivil immigration enforcement actions” as a “[f]ederal responsibility,” and provides as follows:
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a. Except for such reasonable time as is necessary to conduct the investigation specified in subsection (c) of this section, no agency or agent shall:
1. arrest, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation;
2. arrest, detain, or continue to detain a person based on an administrative warrant entered into the Federal Bureau of Investigation’s National Crime Information Center database, or successor or similar database maintained by the United States, when the administrative warrant is based solely on a violation of a civil immigration law; or
3. detain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.
b.
1. Unless an agency or agent is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
A. permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
B. permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or
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C. while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date.
2. An agency or agent is authorized to communicate with ICE in order to determine whether any matter involves enforcement based solely on a violation of a civil immigration law.
c. This section shall not apply when an investigation conducted by the agency or agent indicates that the subject of the investigation:
1. has an outstanding criminal warrant;
2. has been convicted of a felony in any court of competent jurisdiction;
3. is a defendant in a criminal case in any court of competent jurisdiction where a judgment has not been entered and a felony charge is pending; or
4. has been identified as a known gang member either in a law enforcement agency’s database or by his own admission.
Id. § 2-173-042. The Ordinance is thus irreconcilable with the
notice and access conditions the Attorney General has imposed on
the 2017 Byrne JAG grant.
After receiving notice of the Attorney General’s new
conditions on the Byrne JAG grant program, the City filed suit
alleging that the conditions were unconstitutional and unlawful.
Throughout this litigation, the City has strenuously argued for
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its prerogative to allocate scarce local police resources as it sees fit – that is, to areas other than civil immigration enforcement – and for the soundness of doing so based on the integral role undocumented immigrant communities play in reporting and solving crime. (See, Pl.’s Br. at 2-4.) Before the Court is the City’s Motion for a Preliminary Injunction, requesting the Court enjoin the Attorney General from imposing the three above-described conditions on FY 2017 Byrne JAG funds.
The Court grants the City a preliminary injunction against the imposition of the notice and access conditions on the Byrne JAG grant. The Court declines to grant the preliminary injunction with respect to the compliance condition.
II. ANALYSIS A. Legal Standard To warrant the entry of a preliminary injunction, the City “must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.” Higher Soc’y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Where the Government is the opposing party, the last two factors merge. Nken v. Holder,
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556 U.S. 418, 435 (2009). Further, under Seventh Circuit precedent, the Court must also “weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017).
B. Likelihood of Success on the Merits This case presents three questions: Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment? We take these questions in turn.
1. Executive Authority under the Byrne JAG Statute Whether the new conditions on the Byrne JAG grant are proper depends on whether Congress conferred authority on the Attorney General to impose them. Congress may permissibly delegate authority and discretion to the Executive Branch through statute. See, Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The contours of the Executive Branch’s authority are circumscribed by statute because the “power to act . . . [is] authoritatively prescribed by Congress.” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297-98 (2013). Accordingly, we must look to the statute to determine the
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authority of the Attorney General to impose conditions on the Byrne JAG grant. In determining the scope of a statute, we look first to its language. See, United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20 (1983) (internal quotations omitted). The language and design of the statute as a whole may guide the Court in determining the plain meaning of the text. Berkos, 543 F.3d at 396.
The Byrne JAG program was created in 2006 and is codified at 34 U.S.C. §§ 10151-10158 (formerly 42 U.S.C. §§ 3750-3757). These provisions are housed in Subchapter V of Chapter 101 entitled “Justice System Improvement.” Subchapter V enumerates the various “Bureau of Justice Assistance Grant Programs” in three parts: Part A covering the Byrne JAG program, Part B covering “Discretionary Grants,” and Part C discussing “Administrative Provisions.” The authority explicitly granted to the Attorney General within the Byrne JAG statute is limited. The Attorney General is authorized to: determine the “form” of the application, 34 U.S.C. § 10153(a); “reasonably require” “the applicant [to] maintain and report . . . data, records, and
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information (programmatic and financial),” 34 U.S.C. § 10152(a)(4); and “develop[] guidelines” for “a program assessment” “in coordination with the National Institute of Justice,” 34 U.S.C. § 10152.
In light of the limited express authority the statute confers on the Attorney General, the City argues that Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant. The fact that Congress did authorize the Attorney General to place substantive conditions on other grants, the City contends, indicates an express reservation of that authority. See, 34 U.S.C. § 10142 (formerly 42 U.S.C. § 3742). By failing to direct the Court to any textual authority within the Byrne JAG statute itself, the Attorney General appears to concede the point.
However, the Attorney General argues that Congress expressly authorized imposition of the challenged conditions through a provision of Subchapter I establishing the Office of Justice Programs, which provision allows the Assistant Attorney General to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6) (formerly 42 U.S.C. § 3712(a)(6)). The difficulty with the Attorney General’s reading of the statute is that this grant of authority to the Assistant Attorney General is located
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in an entirely different subchapter governing Office of Justice Programs, whereas Congress codified the later-in-time Byrne JAG program under the aegis of Bureau of Justice Assistant Grant Programs. The statute contains no textual reference that applies this section to the rest of the chapter or specifically to the Byrne JAG program. In fact, Chapter 101 comprises 38 subchapters implicating a broad swath of federal programs and subject matter, ranging from grants for residential substance abuse treatment, see, 34 U.S.C. §§ 10421-10426, to criminal child support enforcement, see, 34 U.S.C. §§ 10361-10367.
Even assuming that § 10102(a) applies to the Byrne JAG grant, reading the statute as the Attorney General advises results in multiple incongruities within the text.
First, it renders superfluous the explicit statutory authority Congress gave to the Director to impose conditions on other Bureau of Justice Assistance grants housed within the same subchapter as the Byrne JAG statute. Congress explicitly provides the Director of the Bureau of Justice Assistance with authority to “determine[]” “terms and conditions” for the discretionary grants itemized in Part B of the statute:
The Director shall have the following duties: [. . .]
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(2) Establishing programs in accordance with part B of subchapter V of this chapter and, following public announcement of such programs, awarding and allocating funds and technical assistance in accordance with the criteria of part B of subchapter V of this chapter, and on terms and conditions determined by the Director to be consistent with part B of subchapter V of this chapter. 34 U.S.C. § 10142 (emphases added). As noted earlier, the Byrne JAG grant is a formula grant located in Part A of Subchapter V. The most natural reading of the statute, then, is that Congress endowed the Director with authority to impose conditions on the discretionary grants under Part B, but specifically withheld that authorization for the formula grant, the Byrne JAG grant, in Part A. See, ibid. The Attorney General’s reading of the statute therefore ignores the ostensibly clear decision by Congress to withhold comparable authority in the Byrne JAG provisions. See, N.L.R.B. v. SW General, Inc., 137 S.Ct. 929, 940 (2017) (noting the expressio unius canon’s application when “circumstances support a sensible inference that the term left out must have been meant to be excluded”) (quotations and alterations omitted). Regardless, it would be quite odd for Congress to give the Attorney General authority to impose conditions on the discretionary grants if it had already provided the Attorney General authority to impose conditions on all grants through Section 10102(a)(6). See, 34 U.S.C. §
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10102(a)(6). This reading would render superfluous the explicit statutory grant of authority to impose conditions on the discretionary grants in Part B. See, Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 811 (7th Cir. 2016) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (quotations and citations omitted).
This conclusion is supported by the fact that Congress specifically conferred authority to impose conditions on other grants housed in the same chapter. Where Congress did so, it did so clearly. For example, Subchapter XIX of Chapter 101 provides federal funds for efforts designed to combat violence against women. See, 34 U.S.C. § 10446-10453 (formerly 42 U.S.C. §§ 3796gg-0 to 3796gg-11). There, Congress expressly authorized the Attorney General to impose conditions when administering the grant:
In disbursing grants under this subchapter, the Attorney General may impose reasonable conditions on grant awards to ensure that the States meet statutory, regulatory, and other program requirements. 34 U.S.C. § 10446(e)(3) (emphasis added). Further, Congress expressly limited its delegation of authority to apply only to funds awarded under that specific subchapter. Ibid. “Where
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Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello, 464 U.S. at 23. What is more, “[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005).
Second, even if there were a basis for importing § 10102(a) into the Byrne JAG statute, it is suspect to ground the Attorney General’s authority to impose the challenged conditions via the power Congress conferred on the Assistant Attorney General. See, 34 U.S.C. § 10102(a)(6); Whitman, 531 U.S. at 468 (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). Furthermore, § 10102(a)(6) provides that the Assistant Attorney General shall exercise “such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 34 U.S.C. § 10102(a)(6) (emphasis added). The language of the statute,
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including its use of the term “may,” implies that any authority of the Assistant Attorney General to place special conditions on grants must flow either from the statute itself or from a delegation of power independently possessed by the Attorney General. See, Jama, 543 U.S. at 346 (“The word ‘may’ customarily connotes discretion.”). Yet the Attorney General in this litigation has pointed to no provision other than § 10102(a)(6) to ground its purported authority to condition Byrne JAG grants.
The Attorney General’s reliance on 34 U.S.C. § 10102(a)(6) is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. See, Gonzales v. Oregon, 546 U.S. 243, 273 (2006) (statutes “should not be read as a series of unrelated and isolated provisions”). Viewed in its context, however, § 10102(a)(6) is better understood as allowing the Attorney General to delegate powers to the Assistant Attorney General to aid in administering the Office of Justice Programs – whereas the Byrne JAG grant is a Bureau of Justice Assistance Program that is both housed in a distinctly different subchapter of Chapter 101 and isolated from other discretionary grants within its own subchapter. Reading § 10102(a)(6) to authorize the Attorney General to impose substantive conditions on all grants under the entire chapter is
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discordant with the specific and clear grants of authority in other sections of the statute.
This conclusion rests on principles of statutory interpretation. It does not imply that Congress cannot impose the conditions at issue. See, Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.”). On the contrary, Congress may well have Spending Clause power to impose the conditions or delegate to the Executive Branch the power to impose them, including the notice and access condition, but it must exert that power through statute. The Executive Branch cannot impose the conditions without Congressional authority, and that authority has not been conferred through Section 10102.
The notice and access conditions therefore exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires. The City has shown a likelihood of success on the merits as to these conditions. We do not reach the question whether the notice and access conditions violate the Spending Clause because, regardless, Congress did not authorize the Attorney General to impose them.
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The Attorney General points to one other statutory
provision, 34 U.S.C. § 10153 (formerly 42 U.S.C. § 3752), for
the authority to impose the compliance condition specifically.
Section 10153(a) lays out the Byrne JAG application
requirements, which read in relevant part:
(A) In general To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
[. . .]
(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, if qualified under regulations promulgated by the Attorney General), that—
[. . .]
(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
34 U.S.C. § 10153(a) (emphases added). Specifically, the
Attorney General argues that § 10153(a)(5)(D) furnishes the
authority to require a Byrne JAG applicant’s compliance with
federal law, including Section 1373. See, ibid. Undeniably,
Section 1373 is a federal law that, by its terms, is applicable
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to the City. The City responds that “all other applicable Federal laws” merely refers to compliance with the narrow body of law governing federal grant-making. See, e.g., 42 U.S.C. § 2000d; 29 U.S.C. § 794(a); 42 U.S.C. § 6102. Both positions are plausible, but for the reasons discussed below, the Attorney General’s position is more consistent with the plain language of the statute.
We, as always, begin with the plain language of the statute. See, Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016). We “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello, 464 U.S. at 20.
The statutory language at issue here is “all other applicable Federal laws.” Black’s Law Dictionary defines “applicable” as “[c]apable of being applied; fit and right to be applied” or “affecting or relating to a particular person, group, or situation; having direct relevance.” Black’s Law Dictionary (10th ed. 2014). This definition embraces both parties’ interpretations. However, the prefatory term in
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§ 10153(a)(5)(D), “all other,” implies a broader meaning than that tolerated by the City’s interpretation. Furthermore, if Congress intended to have the applicant only certify compliance with a limited body of Federal grant-making law, it could have so stated. The City seeks to read into § 10153(a)(5)(D) references to specific federal statutes that are not there.
The City argues that the word “applicable” must have a narrowing effect. (Pl.’s Brief at 19.) However, it is equally reasonable to read “applicable” as referring to the noun, in other words, to refer to the federal laws applicable to the applicant – in this case, Chicago. 34 U.S.C. § 10153(a)(5)(D).
The Court will not stretch the natural meaning of the text, especially here where the City offers no case law or other authority to support its straitjacketed interpretation of “all other applicable Federal laws.” 34 U.S.C. § 10153; see also, Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”) (quotations omitted).
The Court found no directly analogous case, but when interpreting similar constructions, the Supreme Court has broadly interpreted the term “applicable laws.” See, e.g., Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922,
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930 (1990) (interpreting the statutory term “applicable laws” as “laws outside the Act”); see also, Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir. 1995) (noting that “all applicable laws” is “not reasonably or fairly susceptible to an interpretation that does not encompass compliance with state and federal tax laws”); United States Dep’t of Health & Human Servs. v. F.L.R.A., 844 F.2d 1087, 109495 (4th Cir. 1988) (finding statutory requirement that Executive Branch managers follow “applicable laws” to exclude Office of Management and Budget circulars but to encompass a broad panoply of statutory law); United States v. Odneal, 565 F.2d 598, 600 (9th Cir. 1977) (reference to “all applicable laws” relating to admiralty grants “very broad statutory authority”).
With no authority to support a more narrow reading of “applicable . . . laws” in a statutory context, and some authority (albeit in a different context) to support a broad reading of the phrase, combined with the plain meaning of the language, the Court finds that “all other applicable Federal laws” encompasses Section 1373 as applicable to the Byrne JAG applicant – in this case, the City of Chicago. Here, it is the City’s burden as the movant to show otherwise, and it fails to meet that burden on this record. See, Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“It frequently is observed that a
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preliminary injunction is an extraordinary and drastic remedy,

one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.”).

This interpretation leads to a rational reading of the

statute, as Congress could expect an entity receiving federal

funds to certify its compliance with federal law, as the entity

is – independent of receiving federal funds – obligated to

comply.

At oral argument, the City argued that this

interpretation is limitless, allowing the Attorney General to

pick from the United States Code like a menu at a restaurant.

For several reasons, the City’s consternation can be assuaged.

First, the default assumption is that states and localities do

comply with all federal laws. Second, the discretion to demand

certifications of compliance is not limitless. The limitations

on federal grant conditions announced in South Dakota v. Dole,

483 U.S. 203, 207-08 (1987), require that a particular

condition, such as a compliance certification, bear some

relation to the purpose of the federal funds. And further, as

noted at oral argument, any condition attached to federal grants

that is too burdensome defeats itself because a state or local

government could reject the funds and thus undermine the

Attorney General’s attempt to induce compliance with the

condition.

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The City argues that previous conditions have all been tethered to statutes that by their terms apply to federal grant recipients. This may be true, but the fact that the Attorney General has not exercised authority does not necessarily speak to whether he possesses it, especially where the statutory terms embrace such an authorization.
The City has not met its burden to show a likelihood of success on the merits regarding the lack of statutory authority for the compliance condition. The most natural reading of the statute authorizes the Attorney General to require a certification of compliance with all other applicable federal laws, which by the plainest definition includes Section 1373. The City offers no statutory or case law authority to support its narrower reading. Because the lack of authority supporting a narrower interpretation and the plain language of the statute counsel against the City’s interpretation of “all other applicable Federal laws,” the Court finds that the Attorney General has statutory authority to impose the compliance condition on the Byrne JAG grant.
2. Constitutionality of Section 1373 Even with Congressional authorization, the compliance condition must be proper under the Spending Clause, and Section 1373 must pass constitutional muster. As the City has
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not argued that the compliance condition violates the Spending Clause, the Court now turns to the Section 1373 question.
Although Congressional power is substantial, Congress may not simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Travis v. Reno, 163 F.3d 1000, 1003 (7th Cir. 1998). It also cannot require states “to govern according to Congress’ instructions” or circumvent the rule by “conscripting the State’s officers directly.” Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 162 (1992). These prohibitions derive from principles of federalism ingrained in our constitutional system, under which “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012); see also, Gregory, 501 U.S. at 459 (“In the tension between federal and state power lies the promise of liberty.”).
With the existence of two sovereigns comes occasional conflict. The Supremacy Clause provides the clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. “As long as it is acting
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within the powers granted it under the Constitution, Congress

may impose its will on the States [and] . . . may legislate in

areas traditionally regulated by the States.” Gregory, 501 U.S.

at 459-60. Further, the presumption attached to every statute

is that it is a constitutional exercise of legislative power.

Reno, 528 U.S. at 148. We start there, attaching the

presumption of constitutionality to Section 1373. Section 1373,

in relevant part, provides that “no person or agency may

prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect

to information regarding the immigration status, lawful or

unlawful, of any individual: (1) Sending such information to,

or requesting or receiving such information from, the

Immigration and Naturalization Service; (2) Maintaining such

information; (3) Exchanging such information with any other

Federal, State, or local government entity.”

8 U.S.C.

§ 1373(b).

It is undisputed that Congress has plenary power to

legislate on the subject of aliens. See, Takahashi v. Fish and

Game Commission, 334 U.S. 410, 419 (1948) (“The Federal

Government has broad constitutional powers in determining what

aliens shall be admitted to the United States, the period they

may remain, regulation of their conduct before naturalization,

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and the terms and conditions of their naturalization.”). Indeed, immigration regulation and enforcement are federal functions. See, Arizona, 567 U.S. at 396-97. Nonetheless, the City argues that Section 1373 violates the Tenth Amendment because it “requires state and local officers to provide information that belongs to Chicago and is available to them only in their official capacity” and requires “state officials to assist in the enforcement of federal statute by regulating private individuals.” (Pl.’s Brief at 20 (internal quotations omitted).) Specifically, the City contends that Section 1373 commandeers state and local governments by “controlling the actions of their employees.” Ibid.
The constitutionality of Section 1373 has been challenged before. The Second Circuit in City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), addressed a facial challenge to Section 1373 in similar circumstances. By executive order, New York City prohibited its employees from voluntarily providing federal immigration authorities with information concerning the immigration status of any alien. Id. at 31-32. The city sued the United States, challenging the constitutionality of Section 1373 under the Tenth Amendment. Id. at 32.
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The Second Circuit found that Section 1373 did not compel state or local governments to enact or administer any federal regulatory program or conscript local employees into its service, and therefore did not run afoul of the rules gleaned from the Supreme Court’s Printz and New York decisions. City of New York, 179 F.3d at 35. Rather, the court held that Section 1373 prohibits local governmental entities and officials only from directly restricting the voluntary exchange of immigration information with the INS. Ibid. The Court found that the Tenth Amendment, normally a shield from federal power, could not be turned into “a sword allowing states and localities to engage in passive resistance that frustrates federal programs.” Ibid. The Second Circuit concluded that Congress may forbid state and local governments from outlawing their officials’ voluntary cooperation with the INS without violating the Tenth Amendment. Ibid. As such, the court nullified New York City’s executive order mandating non-cooperation with federal immigration authorities to the extent it conflicted with Section 1373. Id. at 37.
The City argues that City of New York v. United States contravenes the Seventh Circuit’s decision in Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998), by impermissibly applying a balancing analysis to encroachments on federalism. We agree
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with the City that balancing the weight of a federalism

infringement is inappropriate, not only under this Circuit’s

precedent in Travis, 163 F.3d at 1003, but Supreme Court

precedent as well. See, Printz, 521 U.S. at 932 (noting that,

where “it is the whole object of the law to direct the

functioning of the state executive, and hence to compromise the

structural framework of dual sovereignty, such a ‘balancing’

analysis is inappropriate . . . [N]o comparative assessment of

the various interests can overcome that fundamental defect.”)

(emphasis omitted). However, the logic of City of New York’s

holding is not indebted to an impermissible balancing test.

Rather, City of New York relies on the distinction between an

affirmative obligation and a proscription:

In the case of Sections 434 and [1373], Congress has

not compelled state and local governments to enact or

administer any federal regulatory program. Nor has it

affirmatively conscripted states, localities, or their

employees into the federal government’s service. These

Sections do not directly compel states or localities

to require or prohibit anything.

Rather, they

prohibit state and local governmental entities or

officials only from directly restricting the voluntary

exchange of immigration information with the INS.

City of New York, 179 F.3d at 34-35 (citation omitted). The

improper balancing the City highlights occurs where the Second

Circuit addressed a secondary question yet found the record

insufficient to supplant its prior analysis. Id. at 36-37. The

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prior analysis was its holding – free from any inappropriate balancing – that states do not have the power “to command passive resistance to federal programs.” Id. at 37. Granted, City of New York does not fully address or answer two arguments that are presented in this case: first, that the federal government cannot demand information belonging to the state; and second, that it cannot (even indirectly) control the scope and nature of the duties of state and local employees. Id. at 36. The Second Circuit merely deemed the record insufficient on both scores. Ibid. Regardless, Supreme Court precedent does not command a different result.
The City relies on Printz, but there, the statute at issue required state officers to perform mandatory background checks on prospective handgun purchasers – an affirmative act foisted on local officials by Congress. See, 521 U.S. at 933. The Supreme Court held that the statute violated the Tenth Amendment, because the federal government cannot “command the States’ officers . . . to administer or enforce a federal regulatory program.” Id. at 935. However, Section 1373 does not require the “forced participation” of state officers to “administer or enforce a federal regulatory program.” Id. at 917-18. It merely precludes a state or local government from “prohibit[ing], or in any way restrict[ing], any . . . official”
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from sending, requesting, maintaining, or exchanging “information regarding the immigration status . . . of any individual.” 8 U.S.C. § 1373. In other words, it prohibits prohibitions on local officials’ voluntary participation.
For similar reasons, other cases cited by the City do not advance the ball either. See, e.g., Reno, 528 U.S. at 151 (finding the Driver’s Privacy Protection Act constitutional because “[i]t does not require the [state] Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals”); New York, 505 U.S. at 188 (finding a “take title” provision on nuclear waste unconstitutional because it forced a state to “enact or administer a federal regulatory program” by affirmatively requiring it to legislate a certain way or take ownership of nuclear waste); F.E.R.C. v. Mississippi, 456 U.S. 742, 765 (1982) (finding no Tenth Amendment violation in provisions of the Public Utilities Regulatory Policies Act permitting states to regulate public utilities on the condition that they entertain federal proposals, as the statute contained nothing “directly compelling” states to enact a legislative program).
At its core, this case boils down to whether state and local governments can restrict their officials from voluntarily
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cooperating with a federal scheme. The Court has not been presented with, nor could it uncover, any case holding that the scope of state sovereignty includes the power to forbid state or local employees from voluntarily complying with a federal program. Like the statute at issue in Reno, Section 1373 “does not require” the City “to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno, 528 U.S. at 151. Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. This distinction is meaningful. In this distinction, Section 1373 is consistent with the constitutional principles enunciated in New York and Printz. See, Printz, 521 U.S. at 935; New York, 505 U.S. at 161-63. Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
It is worth noting, however, that this case poses a unique and novel constitutional question. The characterization of
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Section 1373 as a prohibition that requires no affirmative state action accurately conveys the literal text of the statute, but it does not accurately portray its practical import. Section 1373 mandates that state and city employees have the option of furnishing to the INS information on individuals’ immigration status while the employee is acting in his or her capacity as a state or local official. The corollary is that local governments cannot both comply with Section 1373 and discipline an employee for choosing to spend his or her time assisting in the enforcement of federal immigration laws. If a state or local government cannot control the scope of its officials’ employment by limiting the extent of their paid time spent cooperating with the INS, then Section 1373 may practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program. In this way, Section 1373 may implicate the logic underlying the Printz decision more than it does the Reno rationale. See, Printz, 521 U.S. at 929-30.
Read literally, Section 1373 imposes no affirmative obligation on local governments. But, by leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers’ ability to extricate their state or municipality
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from involvement in a federal program. Under current case law,

however, only affirmative demands on states constitute a

violation of the Tenth Amendment. Here, we follow binding

Supreme Court precedent and the persuasive authority of the

Second Circuit, neither of which elevates federalism to the

degree urged by the City here. A decision to the contrary would

require an expansion of the law that only a higher court could

establish.

Accordingly, the City has not shown a likelihood of success

on the merits on the constitutionality of Section 1373.

C. Irreparable Harm

The City has demonstrated the second factor of the

preliminary injunction analysis – irreparable harm.

In

assessing irreparable harm, courts must analyze whether the

“harm . . . cannot be prevented or fully rectified by the final

judgment after trial.” Roland Mach. Co. v. Dresser Indus.,

Inc., 749 F.2d 380, 386 (7th Cir. 1984). Injury to reputation

or goodwill is not easily measurable in monetary terms, and so

often is deemed irreparable. Stuller, Inc. v. Steak N Shake

Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012). Here, the

City contends that, in the absence of an injunction, it must

either forego the Byrne JAG grant funds it has specifically

earmarked for life-saving technology that detects when and where

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gunshots are fired (P.I. Hrg. Tr. at 31:8-32:9) or accede to the new conditions the Attorney General has placed on the funds and suffer the collapse of trust between local law enforcement and immigrant communities that is essential to ferreting out crime.
Two recent cases have dealt with preliminary injunctions regarding facts similar to those before the Court. Though the legal issues presented in these cases are different than those at bar, the harms alleged are sufficiently analogous. In both cases, the district court found that the plaintiff established irreparable injury. In City of El Cenizo v. State, the court entered a preliminary injunction and credited the plaintiff’s assertion that it would suffer two forms of irreparable harm: (1) “Trust between local law enforcement and the people they serve, which police departments have worked so hard to promote, will be substantially eroded and result in increased crime rates”; and (2) “Local jurisdictions face severe economic consequences . . . including . . . the loss of grant money.” City of El Cenizo v. State, No. SA-17-CV-404-OLG, 2017 WL 3763098, at *39 (W.D. Tex. Aug. 30, 2017). In County of Santa Clara v. Trump, the court found that the plaintiff established a “constitutional injury” and irreparable harm “by being forced to comply with an unconstitutional law or else face financial injury.” County of Santa Clara v. Trump, No. 17-CV-00485-WHO,
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2017 WL 1459081, at *27 (N.D. Cal. Apr. 25, 2017), reconsideration denied, No. 17-CV-00485-WHO, 2017 WL 3086064 (N.D. Cal. July 20, 2017).
The harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable. Once such trust is lost, it cannot be repaired through an award of money damages, making it the type of harm that is especially hard to “rectif[y] by [a] final judgment.” Roland Mach., 749 F.2d at 386.
The Attorney General minimizes the impact of the relatively modest Byrne JAG funds on public safety and argues that the City could, by simply declining the funds, avoid any loss of trust between local law enforcement and the immigrant communities. However, a “Hobson’s choice” can establish irreparable harm. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). In Morales, the Supreme Court held that a forced choice between acquiescing to a law that the plaintiff believed to be unconstitutional and violating the law under pain of liability was sufficient to establish irreparable injury. Ibid. In the same way, forcing the City either to decline the grant funds based on what it believes to be unconstitutional conditions or accept them and face an irreparable harm, is the type of “Hobson’s choice” that supports irreparable harm. Further, a
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constitutional violation may be sufficient to establish
irreparable injury as a matter of law. See, 11A Charles Alan
Wright et al., Federal Practice & Procedure § 2948.1 (2d ed.
1995) (“When an alleged deprivation of a constitutional right is
involved, most courts hold that no further showing of
irreparable injury is necessary.”); see also, Ezell v. City of
Chicago, 651 F.3d 684, 698–700 (7th Cir. 2011); Doe v. Mundy,
514 F.2d 1179, 1183 (7th Cir. 1975).
The lack of injury afflicting the Attorney General in the
absence of an injunction buttresses the City’s showing of
irreparable harm. The Seventh Circuit has described this factor
as follows:
In deciding whether to grant a preliminary injunction, the court must also consider any irreparable harm that the defendant might suffer from the injunction—harm that would not be either cured by the defendant’s ultimately prevailing in the trial on the merits or fully compensated by the injunction bond that Rule 65(c) of the Federal Rules of Civil Procedure requires the district court to make the plaintiff post. The cases do not usually speak of the defendant’s irreparable harm, but the qualification is implicit; if the defendant will not be irreversibly injured by the injunction because a final judgment in his favor would make him whole, the injunction will not really harm him. But since the defendant may suffer irreparable harm from the entry of a preliminary injunction, the court must not only determine that the plaintiff will suffer irreparable harm if the preliminary injunction is denied—a threshold requirement for granting a preliminary injunction—but also weigh that harm against any irreparable harm that
- 38 -

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the defendant can show he will suffer if the injunction is granted. Roland Mach., 749 F.2d at 387 (emphasis in original). Although harm to federal interests should not be diminished, a delay in the imposition of new conditions that have yet to go into effect will likely not cause any harm akin to that alleged by the City. The Attorney General has put forth no comparable claim that a delay in imposition of the new Byrne JAG conditions would permanently harm community relationships or any other interest that would be difficult to remedy through money damages. See, Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001) (noting that maintaining the status quo was unlikely to affect a substantial public interest in the short time of the injunction). Thus, the Court finds that the City has established that it would suffer irreparable harm if a preliminary injunction is not entered.
D. Balancing of Equities and the Public Interest The remaining two factors in the preliminary injunction analysis merge where the Government is a party. Nken, 556 U.S. at 435. These two factors are not outcome-determinative here. Both sides can claim that concerns of public safety justify their positions.
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The City and amici strongly emphasize the studies and other evidence demonstrating that sanctuary cities are safer than their counterparts. Although both parties before the Court have emphatically stressed the importance of their policy choice to decrease crime and support law enforcement – with Chicago emphasizing the benefits that flow from immigrant communities freely reporting crimes and acting as witnesses, and the Attorney General emphasizing the need to enforce federal immigration law – choosing between competing public policies is outside the realm of judicial expertise and is best left to the legislative and executive branch. See, Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (noting that the courts are “vested with the authority to interpret the law; [they] possess neither the expertise nor the prerogative to make policy judgments”).
Accordingly, the final two factors favor neither party. Both parties have strong public policy arguments, the wisdom of which is not for the Court to decide. Accordingly, the Court finds that balancing the equities and weighing the public interest do not tip the scale in favor of either party.
III. CONCLUSION For the reasons stated herein, the Court grants the City a preliminary injunction against the Attorney General’s imposition
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of the notice and access conditions on the Byrne JAG grant. The City has established a likelihood of success on the merits as to these two conditions and irreparable harm if an injunction does not issue, and the other two preliminary injunction factors do not sway the analysis. This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction. See, Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017).
The Court denies the City’s Motion for a Preliminary Injunction with respect to the compliance condition, because the City has failed to establish a likelihood of success on the merits.
IT IS SO ORDERED.

Dated: September 15, 2017

Harry D. Leinenweber, Judge United States District Court

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 Case: 1:17-cv-05720 Document #: 81 Filed: 09/26/17 Page 1 of 12 PageID #:1161

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,

Plaintiff, v.
JEFF SESSIONS, Attorney General of the United States,

Civil Action No. 1:17-cv-05720 Hon. Harry D. Leinenweber

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO STAY NATIONWIDE APPLICATION OF PRELIMINARY INJUNCTION

DATED: September 26, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
STEPHEN J. BUCKINGHAM Special Counsel
ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

Case: 1:17-cv-05720 Document #: 81 Filed: 09/26/17 Page 2 of 12 PageID #:1162
INTRODUCTION This Court entered a preliminary injunction against the Department of Justice’s “imposition of the notice and access conditions on the Byrne JAG grant,” and declared that the injunction “is nationwide in scope.” (Dkt. No. 78 at 40-41.) Concurrent with filing this motion, Defendant has appealed the Court’s Order. (Dkt. No. 79.) Pursuant to Federal Rule of Civil Procedure 62(d), Defendant respectfully requests that this Court stay the portion of the preliminary injunction that gives the injunction nationwide application, pending the resolution of appellate review. Defendant respectfully believes both that the notice and access conditions are lawful and, separately, that a nationwide injunction is improper here. This stay request focuses only on the nationwide scope of the injunction, however, because that aspect of the Court’s ruling, in combination with the contemplated timeline for 2017 Byrne JAG grant-making, threatens irreparable, broad, and especially inequitable harm. Nearly 1,000 applications for 2017 Byrne JAG funds were submitted and remain outstanding, and the Department intended by September 30, 2017 to issue award documents to applicants nationwide stating the applicable 2017 grant conditions. But the Department now faces a true Hobson’s choice: either (1) issue 2017 Byrne JAG awards without the notice and access conditions for any outstanding application, making those conditions unenforceable for the grant cycle—even if Defendant ultimately prevails on the lawfulness of those conditions; or (2) inordinately delay issuing 2017 award documents while the conditions’ lawfulness is further adjudicated, delaying the flow of funding to law enforcement around the nation. The nationwide preliminary injunction thus triggers for the Department a dilemma between forfeiting imposition of the notice and access conditions for all outstanding 2017 Byrne JAG applications versus disrupting prudent administration of the Byrne JAG program to await the result of further litigation. Because of that predicament, and because there is a substantial likelihood that
1

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the nationwide scope of the injunction will be overturned, a stay as to the nationwide scope of the injunction is necessary.
Under Defendant’s proposed stay, the City of Chicago would retain for itself the benefit of the Court’s preliminary injunction of the notice and access conditions. In response to other jurisdictions’ 2017 Byrne JAG applications, the Department would, under this proposal, anticipate issuing, in an expeditious manner, award documents that include the notice and access conditions. In this scenario where the nationwide application of the preliminary injunction is stayed, applicants who do not contest the conditions would be free to accept the award and receive funds immediately. Those applicants who do contest the conditions would be free either to await resolution in this case or seek relief themselves. That state of play—not the Hobson’s choice that the nationwide preliminary injunction creates for the Department—is more equitable.
For these reasons, Defendant respectfully requests a stay of the nationwide scope of the preliminary injunction pending the resolution of appellate proceedings. If the Court declines to grant that relief, Defendant asks alternatively that the Court stay the nationwide scope of the preliminary injunction until the Seventh Circuit decides whether such a stay is appropriate pending the resolution of appellate proceedings. To promote efficient disposition of this motion, Defendant proposes that, if the Court believes additional briefing is necessary, the City may have until October 3 (one week) to file its response, and Defendant will waive a reply.
BACKGROUND A. The 2017 Byrne JAG Grant-Making Cycle Applications for 2017 Byrne JAG awards were generally due by September 5, 2017. (Second Decl. of Alan R. Hanson (“2d Hanson Decl.”) ¶ 3, filed herewith.) The Department has received nearly 1,000 applications from State and local jurisdictions nationwide seeking 2017 Byrne JAG funds. (Id. ¶ 4). In response to these applications, the Department has not as of this
2

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time issued 2017 Byrne JAG award documents to any jurisdictions other than the County of Greenville, South Carolina and the City of Binghamton, New York—both of which were issued award documents on August 23, 2017. (Id. ¶ 5).
With respect to 2017 Byrne JAG applications generally, the Department had “aim[ed] . . . to issue the award notifications by September 30, 2017, although that timing is not mandatory.” (Dkt. No. 28 ¶ 4; see also 2d Hanson Decl. ¶ 7.) Once the Department issues award documents to an applicant, “the applicant has at least 45 calendar days to sign and submit the award acceptance document.” (Dkt. No. 28 ¶ 5.) “Only at that time [of acceptance] – upon signing the award document – does a grantee commit to abide by the grant conditions.” (Id.)
B. The Court’s Nationwide Preliminary Injunction In this case, the City sought a preliminary injunction concerning what the Court describes as “the notice condition, the access condition, and the compliance condition” that the Department sought to apply to 2017 Byrne JAG awards. (Dkt. No. 78 at 5.) The Court preliminarily enjoined the notice and access conditions, but granted no relief to the City as to the compliance condition “because the City has failed to establish a likelihood of success on the merits” as to that condition. (Id. at 41.) In opposing the City’s motion for a preliminary injunction, Defendant argued as to the scope of any injunction that, if the Court were to “determine that injunctive relief is appropriate here, any such relief should be limited to the City.” (Dkt. No. 32 at 25.) With respect to the two conditions that the Court determined to enjoin, the Court stated instead that its “injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” (Dkt. No. 78 at 41 (citing Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017).)
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LEGAL STANDARD “While an appeal is pending from an interlocutory order . . . that grants . . . an injunction, the court may suspend . . . an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c). In determining whether to stay an order pending appeal, a court considers “the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). A stay pending appeal is intended “to minimize the costs of error” and can be “necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits.” Id. Such interim relief to preserve the status quo is especially appropriate with respect to a preliminary injunction, because “one reason for permitting the immediate appeal of a preliminary injunction is that such an injunction is entered after a summary proceeding, increasing the risk of error.” Ty, Inc. v. Publications Int’l Ltd., 292 F.3d 512, 516 (7th Cir. 2002).1
ARGUMENT I. Defendant Is Likely to Succeed on the Merits in Appealing the Nationwide Scope of
the Preliminary Injunction. Defendant is likely to succeed in demonstrating on appeal that the nationwide scope of the Court’s preliminary injunction is improper. Any injunction here should have been limited to the City’s Byrne JAG application, because both constitutional and equitable principles require that injunctive relief be limited to redressing a plaintiff’s own cognizable injuries. Article III requires that “a plaintiff must demonstrate standing . . . for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation

1

Before moving in the Court of Appeals for a stay pending appeal, “[a] party must ordinarily move

first in the district court for . . . an order suspending . . . an injunction while an appeal is pending.” Fed. R.

App. P. 8(a)(1).

4

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omitted). “The remedy” sought therefore must “be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). “The actual-injury requirement would hardly serve [its] purpose . . . of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Id.
Equitable principles independently require that the extraordinary relief of an injunction “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted); see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272 (7th Cir. 1995) (stating that “a court abuses its discretion where the scope of injunctive relief exceeds the extent of the plaintiff’s protectible rights” (citation omitted)).
These constitutional and equitable limits countermand the nationwide injunction entered here. The injunction is overbroad because the City suffers no cognizable injury based on the imposition of the conditions on other Byrne JAG applicants. To the extent the City has a cognizable injury, it is fully redressed by an injunction limited to the imposition of conditions on the City itself. Relatedly, it is inequitable to disrupt administration of the Byrne JAG program nationwide on the basis of asserted harms to a single applicant, where no class action has been certified.
As a constitutional matter, the nationwide scope of the injunction is improper because the City’s ability to obtain grant funding and its obligation to comply with conditions are wholly
5

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unaffected by the nature of conditions imposed on other applicants. Thus, the City cannot demonstrate that its own injury would be less than fully redressed if the notice and access conditions were enjoined as to the City only. To the extent that other Byrne JAG applicants believe they would be injured by those conditions, they are free to bring their own challenges—and a few have done so, although most have not (presumably in part because many applicants are perfectly content to comply with the notice and access conditions). Here, in all events, the City does not have, and has never claimed, standing to assert purported injuries to Byrne JAG applicants at large.
Apart from these standing constraints, equitable considerations also counsel against the nationwide scope of the injunction. The nationwide injunction imposes sweeping disruption of the Department’s administration of the Byrne JAG program on the basis of asserted harms to only one of over nearly 1,000 applicants. Moreover, because this case is not a class action where the result will bind all Byrne JAG applicants, entry of a nationwide injunction asymmetrically subjects the Department to the risk of a nationwide class action if the Department loses, without allowing the Department the corresponding benefit if the Department wins. Here, for example, Byrne JAG applicants apart from the City remain free to seek a preliminary injunction of the compliance condition, even though this Court found that relief unwarranted. For all of these reasons, any injunctive relief here should be focused on the City and not on other Byrne JAG applicants who are not before the Court.
The City, for its part, has previously echoed these same principles in protesting against a nationwide injunction, exhorting the Supreme Court last year to scrutinize whether a “proven standing injury justified an expansive nationwide injunction,” because courts should not adopt “a standing rule for nationwide injunctions that effectively gives objecting parties the right to veto federal policies in every locality in the country . . . through sweeping injunctions that bear little
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relation to the narrow harms asserted.” See Brief for Amici Curiae, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345, at *5, *19 (Mar. 7, 2016).
In support of the nationwide injunction here, this Court cited the Fourth Circuit’s International Refugee Assistance Project (“IRAP”) decision. (Dkt. No. 78 at 41.) That noncontrolling authority is presently on appeal to the Supreme Court, including as to the overbreadth of the injunction in that case. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2086 (2017). The Fourth Circuit’s IRAP decision is wrong, but even on its own terms it is distinguishable from this case, because that decision relied on factors that are not present here. First, the IRAP court asserted that “Plaintiffs are dispersed throughout the United States.” 857 F.3d at 605. Second, the court stated that “nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’” Id. (citation omitted). Third, because the court had found a violation of the Establishment Clause, it reasoned that even enforcement against others would “reinforce the ‘message’ that Plaintiffs ‘are outsiders, not full members of the political community.’” Id. (citation omitted). Here, by contrast, there is only a single plaintiff; the case involves conditions on grant funding rather than the application of immigration law to foreign nationals; and the Establishment Clause is not implicated. The Fourth Circuit’s IRAP decision (even if it were correct) thus does not bear the weight of the nationwide injunction entered here.
Because Defendant has made a strong showing that success is likely on appeal of the nationwide scope of the preliminary injunction, this factor weighs in favor of granting the requested stay pending appeal. II. Absent a Stay, the Nationwide Preliminary Injunction Will Cause Irreparable Injury.
The nationwide injunction, if left unstayed, bestows irreparable harm on the Department no matter the path the Department takes in response. As the Department earlier announced in
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previewing the 2017 Byrne JAG cycle, and as it told the Court, the Department had “aim[ed] . . . to issue the award notifications by September 30, 2017.” (Dkt. No. 28 ¶ 4; see also 2d Hanson Decl. ¶ 7.) In view of the constitutional notice requirement for imposing conditions on grants, see South Dakota v. Dole, 483 U.S. 203, 207 (1987), any conditions that the Department proposes to attach to 2017 Byrne JAG awards seemingly need to be stated in the award notifications that are issued for prospective recipients to consider accepting.
Although the September 30 target “is not mandatory,” (Dkt. No. 28 ¶ 4), reasonably timely issuance of award notifications is important for prudent administration of the Byrne JAG program, so that jurisdictions can timely receive funding to support law enforcement activity. (2d Hanson Decl. ¶ 10.) Even without any additional delay, never before have virtually all Byrne JAG applications remained outstanding for the issuance of award documents at this advanced juncture (i.e., late September) in the grant-making cycle. (Id. ¶ 9.) A significant delay in the grant-making process past September 30 raises the prospect of imposing particular burdens for localities with relatively small budgets (id. ¶ 11), disrupting State grant-making processes under which States issue sub-awards of Byrne JAG funds (id. ¶ 12), and undermining recovery efforts in jurisdictions that have recently suffered disasters (id. ¶ 13).
At the present juncture in the 2017 Byrne JAG grant-making process, nearly 1,000 applications for Byrne JAG grants have been received from applicants nationwide. (2d Hanson Decl. ¶ 4.) Those applications await the Department’s issuance of award notifications so that the recipients can accept the grant (with whatever grant conditions are stated in the award) and Byrne JAG award money can flow. (Id. ¶ 5.) Nationwide 2017 Byrne JAG funding available to be awarded is projected to total up to approximately $257 million. (Id. ¶ 6.)
In view of the status of the 2017 Byrne JAG grant-making process, the nationwide injunction leaves the Department with dueling, irreconcilable imperatives. On one hand, the
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Department could prioritize minimizing disruption to the Byrne JAG program by proceeding now with issuing award notifications nationwide that omit the preliminarily enjoined notice and access conditions. But doing so would sacrifice the Department’s ability to impose those conditions for 2017 even if the Department prevails in this litigation, meaning that the preliminary injunction would have final effect for this grant cycle. On the other hand, the Department could hold the issuance of 2017 Byrne JAG award notifications while further litigating the lawfulness of including the notice and access conditions, litigation the Department would naturally pursue given the constraints on its grant administration resulting from the Court’s injunction. But doing so will disrupt the timely administration of the Byrne JAG program, delaying the release of hundreds of millions of dollars in law enforcement funding.
Neither alternative is palatable; both cause irreparable harm. A stay of the nationwide scope of the preliminary injunction, by contrast, would allow reasonably timely award notifications to proceed while largely preserving the Department’s ability to pursue imposing the notice and access conditions for 2017 Byrne JAG grants. This factor thus supports the requested stay pending appeal. III. Staying Nationwide Application of the Preliminary Injunction Will Not Injure the
City of Chicago. The City faces no injury from a stay of the nationwide scope of the preliminary injunction. Defendant emphasizes that the Court is not being asked to stay the effect of that injunction with respect to the City’s 2017 Byrne JAG application, as to which the notice and access conditions would remain preliminarily enjoined under Defendant’s proposed stay. (Consistent with the Court’s preliminary injunction ruling, any 2017 Byrne JAG grant to the City remains contingent on the City’s ability to establish that it is in compliance with 8 U.S.C. § 1373 as per stated conditions.) Accordingly, this factor favors granting the requested stay pending appeal.
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IV. The Public Interest Favors Staying Nationwide Application of the Preliminary Injunction. The proposed stay supports the public interest because, as discussed above, it enables the
Department to avoid a tradeoff between disrupting administration of the Byrne JAG program and forfeiting for 2017 the notice and access grant conditions that support federal immigration enforcement priorities. The public suffers under either of those options. But with the nationwide scope of the preliminary injunction stayed pending appeal, the 2017 Byrne JAG grant-making process can proceed without the Department altogether losing its ability to pursue imposing the notice and access conditions for 2017 Byrne JAG grants. This factor, too, thus supports the requested stay.
CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court stay the nationwide application of its preliminary injunction during the pendency of appellate review. If the Court declines to grant that relief, Defendant asks alternatively that the Court stay the nationwide scope of the preliminary injunction until the Seventh Circuit decides whether such a stay is appropriate pending the resolution of appellate proceedings.

DATED: September 26, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
STEPHEN J. BUCKINGHAM Special Counsel

10

Case: 1:17-cv-05720 Document #: 81 Filed: 09/26/17 Page 12 of 12 PageID #:1172 /s/ Arjun Garg ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov Counsel for Defendant
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 Case: 1:17-cv-05720 Document #: 91 Filed: 10/06/17 Page 1 of 8 PageID #:1243

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF CHICAGO,

)

)

Plaintiff,

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS III, )

)

Defendant.

)

Case No. 17-CV-5720 Honorable Harry D. Leinenweber

THE UNITED STATES CONFERENCE OF MAYORS’ MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24, The United States Conference of Mayors

(the “Conference”), by its attorneys, Brian C. Haussmann and John M. Fitzgerald of Tabet

DiVito & Rothstein LLC, respectfully moves this Court for leave to intervene in this action to

asserts its rights as a co-plaintiff with the City of Chicago. In support of this motion, the

Conference states as follows:

INTRODUCTION AND BACKGROUND

1. The Conference files this motion to protect its interest in this litigation and

prevent an extraordinary and entirely avoidable waste of judicial resources.

2. The Conference is the official non-partisan organization of U.S. cities with

populations of 30,000 or more. There are 1,408 such cities in the country today. Each city is

represented in the Conference by its chief elected official, the Mayor. Conference members

speak with a united voice on organizational policies and goals, and they adopt policy positions

that collectively represent the views of the nation’s mayors. The Conference has adopted such a

policy opposing punitive sanctuary jurisdiction policies such as those challenged in this action.

3. On August 7, 2017, the City of Chicago (“Chicago”), one of the Conference’s

members, filed this action seeking declaratory and injunctive relief. (Docket (“Dkt.”) 1.)

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Chicago sought to invalidate three unauthorized and unconstitutional conditions concerning federal immigration enforcement that Defendant was placing on the receipt of federal law enforcement funds under the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”).
4. On August 10, 2017, Chicago moved for a preliminary injunction to enjoin the challenged conditions. (Dkt. 21, 22.)
5. On August 31, 2017, the Conference joined an amicus curiae brief in support of Chicago’s motion. (Dkt. 51.) In addition to the Conference, the brief was filed on behalf of the County of Santa Clara, California; 36 additional cities, counties and municipal agencies; the National League of Cities; the National Association of Counties; the International Municipal Lawyers Association; and the International City/County Management Association.
6. In their brief, the Conference and other amici emphasized that (a) the conditions Defendant was placing on the receipt of Byrne JAG funds undermined the ability of law enforcement agencies in cities and other jurisdictions nationwide to adopt policies tailored to the needs of their communities, (b) Mayors and Chiefs of Police in diverse jurisdictions around the country have concluded that restricting local involvement in federal immigration enforcement promotes public safety, and (c) that the Byrne JAG conditions have created uncertainty and operational challenges for jurisdictions nationwide. The Conference and its fellow amici concluded: “A nationwide injunction is needed to halt DOJ’s unlawful effort to impose these conditions on local jurisdictions and to protect the safety of communities across the country.” (Dkt. 51 at 15.)
7. On September 15, 2017, the Court granted Chicago’s motion for a preliminary injunction as to two of the three challenged conditions (the “notice” and “access” conditions), finding that Defendant lacked statutory authority to impose them on grant applicants. (Dkt. 78.) Defendant argued that in the exercise of its equitable powers, the Court should restrict any
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injunction to Chicago alone (see Dkt. 32 at 25), but the Court rejected Defendant’s argument, holding: “This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” (Dkt. 78 at 41, citation omitted.)
8. On September 26, 2017, Defendant filed a notice of appeal from the Court’s injunction order and a motion to stay nationwide application of the injunction. (Dkt. 79-81.)
9. In his stay motion, Defendant argues for the first time that Article III of the Constitution precludes the Court from granting a nationwide injunction because Chicago is the only plaintiff. (See Dkt. 81 at 4-5.) Defendant is incorrect as a matter of law. See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017); County of Santa Clara v. Trump, No. 17-CV-00485, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017).
10. Accepting Defendant’s argument would also cause extreme hardship to the Conference and its members nationwide. Defendant effectively argues that each grant applicant must individually sue to enjoin the same unauthorized conditions from impacting their own Byrne JAG awards. This would unnecessarily burden the Conference and the over 1,400 cities it represents by requiring hundreds of costly and time-consuming lawsuits to enjoin the same unauthorized conditions that apply uniformly across the country. It would also burden the courts, both in this district and around the country, with hundreds of needless lawsuits.
11. Accordingly, on September 28, 2017, the undersigned counsel for the Conference appeared at the presentment of Defendant’s motion to stay and alerted the Court that the Conference intended to seek leave to intervene in this action.
12. For these reasons and those set forth below, the Court should grant the Conference leave to intervene in this action and grant it leave to file instanter the complaint
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attached as Exhibit 1 to this motion. Additionally, upon the Court’s granting the Conference’s intervention, the Conference will seek entry of a nationwide injunction of the “notice” and “access” conditions for the reasons already advanced by Chicago and ordered by this Court.
ARGUMENT I. The Court should grant the Conference leave to intervene as of right under Rule
24(a)(2). 13. Federal Rule of Civil Procedure 24(a)(2) provides: On timely motion, the court must permit anyone to intervene who . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Rule 24(a) is construed liberally, with all doubts resolved in favor of intervention. Michigan v. United States Army Corps of Engineers, No. 10-CV-4457, 2010 WL 3324698, at *2 (N.D. Ill. Aug. 20, 2010). All non-conclusory allegations of the motion and pleading are taken as true. Lake Investors Development Group v. Egidi Development Group, 715 F.2d 1256, 1258 (7th Cir. 1983). The Court should not deny a motion to intervene “unless it appears to a certainty that the intervenor is not entitled to relief under any set of facts which could be proved under the complaint.” Id. 14. The Conference meets each of the requirements of Rule 24(a)(2). 15. First, the Conference claims an interest in the matters at issue in this lawsuit. “In ascertaining a potential intervenor’s interest in a case, our cases focus on the issues to be resolved by the litigation and whether the potential intervenor has an interest in those issues.” Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322 (7th Cir. 1995). Here, the Conference and its member cities, both in this Court’s district and nationwide, have an interest in protecting their
4

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local law enforcement decisions against the same unauthorized conditions at issue in this lawsuit, which Defendant also seeks to impose upon them.
16. Second, the Conference and its members’ ability to protect their interests would be substantially impaired if they were not permitted to intervene, because they would potentially have to file over a thousand additional lawsuits to vindicate the same rights at issue here. Such potential for impairment satisfies Rule 24(a)(2). See Flying J., Inc. v. J.B. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009) (granting intervention because “to make the association start over . . . would impose substantial inconvenience on the association with no offsetting gain that we can see”); Revelis v. Napolitano, 844 F. Supp. 2d 915, 924-25 (N.D. Ill. 2012) (granting intervention where a party’s rights “would potentially be impaired”) (Leinenweber, J.)
17. Third, Defendant’s motion for a stay specifically challenge’s Chicago’s ability to adequately represent the Conference’s interest in a nationwide injunction. Thus, while Chicago has adequately and properly sought such relief to date, because of that challenge, intervention is required. A showing that representation of the intervenor’s interest may be inadequate, or may become inadequate, is sufficient to authorize intervention by the Conference. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10 (1972) (intervenor must only show “that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal” (citation omitted)); Builders Ass’n of Greater Chicago v. City of Chicago, 170 F.R.D. 435, 441 (N.D. Ill. 1996) (allowing associations of builders to intervene in challenge to City Ordinance even though City was advancing their interests “at this point in the litigation” because there was a possibility that their interests could diverge).
18. Here, Defendant’s stay motion contests this Court’s grant of relief only as to cities other than Chicago – i.e., the Conference’s other member cities. Moreover, Defendant now contests the suitability of this lawsuit as a vehicle for nationwide relief from the Attorney
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General’s unlawful conditions. That argument is incorrect as a matter of law. However, by raising an argument that, if accepted, would render Chicago unable to protect the Conference’s interests, Defendant has created the necessary conditions to meet Rule 24’s “minimal” requirement for intervention as of right. See Trbovich, 404 U.S. at 538 n. 10. Thus, the Conference must be permitted to intervene to defend its interests.
19. Fourth, the Conference’s motion is timely. A motion to intervene is timely where the moving party acts reasonably given the circumstances. Reich, 64 F.3d at 321. In evaluating timelines, the Court should consider whether either party will suffer prejudice. Id.; South v. Rowe, 759 F.2d 610, 612-13 (7th Cir. 1985). In this case, the Conference supported Chicago’s motion for a nationwide preliminary injunction by timely filing an amicus brief on August 31. Defendant argued for the first time in its September 26 motion to stay that Chicago lacked standing to pursue nationwide relief—its opposition to Chicago’s injunction motion made no such argument. Thus, the Conference did not recognize, and could not reasonably have recognized, a need to intervene until September 26. Thereafter, the Conference acted promptly. It appeared before the Court through counsel two days after the motion was filed and, with the Court’s approval, filed this motion and the Conference’s proposed complaint (Exhibit 1) only eight days later. This motion is therefore timely. See Reich, 64 F.3d at 321 (“we determine timeliness from the time the potential intervenors learn that their interest might be impaired”).
20. Moreover, the Conference seeks only to protect its members’ rights to rely upon this Court’s nationwide injunction and the ultimate declaratory and injunctive relief sought by Chicago in this action, and will not otherwise expand the scope of this action. This case is not at an advanced stage. Indeed, Defendant has not yet answered Chicago’s complaint and just last week asked for an additional 45 days within which to do so. As such, the Conference’s intervention will cause Defendant no prejudice. By contrast, the Conference would be severely
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prejudiced if not permitted to intervene. See South, 759 F.2d at 612 n. 2 (requiring the intervenor to file another lawsuit was prejudicial because “such a suit would be costly [and] would result in further delays”). Not only would the Conference and its members have to file additional lawsuits, but doing so would add significant complexity and serious delay to the administration of the Byrne JAG grants. Defendant concedes that any such delay would be harmful to program applicants. (See Dkt. 81 at 7-9.)
21. Denying intervention would, moreover, force the parties and the Seventh Circuit to expend significant resources addressing legal questions that can be fully obviated by the Conference’s intervention. Under all these circumstances, the Conference should be allowed to intervene as of right.
II. Alternatively, the Court should permit the Conference to intervene under Rule 24(b).
22. Regardless of whether a party has a right to intervene under Rule 24(a), the Court “may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact,” unless intervention would “unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b). At a minimum, permissive intervention is appropriate in this case.
23. The Conference seeks to pursue the same claims on behalf of its members that Chicago has thus far advanced and, for the reasons set forth above, see supra at ¶¶ 17-18, the Conference’s participation in this action will not cause prejudice or undue delay. Permissive intervention is therefore appropriate here. Cf. City of Chicago v. Federal Emergency Management Agency, 660 F.3d 980, 986 (7th Cir. 2011) (district court’s refusal to grant permissive intervention was unreasonable where intervention “could not have produced net delay when one considers that allowing [intervenors] into this litigation might head off a second suit.”).
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WHEREFORE, the United States Conference of Mayors respectfully requests that the Court grant it leave to intervene in this matter and to file instanter the complaint attached as Exhibit 1 to this motion, and that the Court grant such further relief as the Court deems necessary and just under the circumstances.

Dated: October 6, 2017
Brian C. Haussmann (ARDC # 6283054) John M. Fitzgerald (ARDC # 6282859) TABET DIVITO & ROTHSTEIN LLC 209 South LaSalle Street, 7th Floor Chicago, IL 60604 Telephone: (312) 762-9450 Facsimile: (312) 762-9451 bhaussmann@tdrlawfirm.com jfitzgerald@tdrlawfirm.com

Respectfully submitted,
THE UNITED STATES CONFERENCE OF MAYORS
By: /s Brian C. Haussmann One of Its Attorneys

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 Case: 1:17-cv-05720 Document #: 94 Filed: 10/06/17 Page 1 of 17 PageID #:1355

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

OPPOSITION TO DEFENDANT’S MOTION TO STAY NATIONWIDE APPLICATION OF PRELIMINARY INJUNCTION

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INTRODUCTION The Attorney General requests a stay of the Court’s nationwide injunction in this case based on his suggestion of an urgent “Hobson’s choice.” But his claimed urgency rings hollow. The Attorney General waited until the last minute to announce the novel, unlawful conditions challenged here, repeatedly told this Court that there was no need for expedition, and then inexplicably waited eleven days after this Court’s September 15 decision to file the instant motion. He cannot now complain that time is suddenly of the essence. And even if any supposed urgency were not of the Attorney General’s own making, there is no “Hobson’s choice” here. The Attorney General lacks authority to impose the conditions at issue. They are unlawful. This Court so held after briefing and argument, and the Attorney General never even tries to explain why the Seventh Circuit is likely to disagree. The Attorney General’s argument for a stay instead boils down to a freestanding claim that he should be allowed to impose these unlawful, ultra vires conditions on every jurisdiction in the Nation except Chicago, including the scores of jurisdictions that have appeared as amici in this litigation. In support, the Attorney General asserts that this Court lacks the power to enjoin unlawful conduct by the defendant in a way that benefits anyone but the plaintiffs before it: Even where a federal court finds that a single government policy is unlawful or unconstitutional, his theory goes, the court is bound to go no farther than preventing that policy’s application to the plaintiff alone. But the Attorney General’s argument ignores that he is a party in this case; this Court simply restrained a defendant properly before it (the Attorney General) from the challenged unlawful conduct (conditioning JAG funds without legal authority). The fact that others will benefit as a byproduct of the Court’s ruling does not somehow render the injunction here legally defective. The Attorney General’s crabbed view of federal judicial power would mean that no court ever has the power to issue an injunction with nationwide effect without first certifying a class action; that
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injunctions must always be artificially restricted such that their benefits flow only to the parties in the litigation; and that, in practice, the federal government may blatantly violate state and local prerogatives or individual rights, unless and until each victim files a motion to intervene in an existing suit or brings a separate emergency action. No such rule exists, nor should it, because it would be both inefficient and unjust.
The Attorney General’s radical position is not the law. (Though the proposed intervention of current amicus U.S. Conference of Mayors as a representative for jurisdictions across the country would obviate the Attorney General’s objection even if it were not baseless.) This Court plainly has the power to issue a nationwide injunction against the Attorney General, who is the defendant in this case. See, e.g., Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 504 (7th Cir. 2008); Fed. R. Civ. P. 65(d). And it properly did so here, consistent with its ample discretion to craft remedies for violations of the law. See, e.g., Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010). The Attorney General thus is not likely to succeed in winning a reversal from the Seventh Circuit on this or any other issue. Nor can the Attorney General show irreparable harm here, where his notice and access conditions are a totally novel innovation, and this Court’s injunction actually preserves the status quo ante. See, e.g., Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017). And meanwhile, in light of the uniform national formula grant program that Congress envisioned with the Byrne JAG program—not to mention the hundreds of jurisdictions whose grant applications are at stake, and who will be subjected to an unlawful federal incursion on their rights if a stay is ordered—the public interest overwhelmingly favors retaining the nationwide injunction against the Attorney General’s unlawful notice and access conditions. A stay is not warranted, and the Attorney General’s motion should be denied.
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BACKGROUND This Court is familiar with the underlying facts in this case, and Chicago recounts only the relevant background here. In late July 2017, the Department of Justice issued a two-paragraph press release and accompanying press “backgrounder” announcing that it would impose two new conditions on FY 2017 Byrne JAG grantees: the notice and access conditions. E.g., Compl. ¶¶ 5556. A few days later, on August 3, the Department released the FY 2017 Byrne JAG application containing those new conditions. E.g., Compl., Ex. D. Chicago filed suit four days later, on August 7, 2017. While Byrne JAG applications are normally due about six weeks after they are issued, this year the Department gave states and localities barely four weeks, until September 5, to file their applications. Sachs Decl. ¶ 10; see also Compl. ¶ 67. In light of that looming deadline, Chicago quickly moved—only three days after filing its complaint—for a preliminary injunction and an expedited briefing schedule to allow this Court to rule before September 5. The Attorney General, however, asserted that “no expedited resolution of the motion or preliminary injunction is needed,” and asked for an extra week (beyond the week that Chicago proposed) to submit its opposition to the injunction. Opp. to Mot. to Expedite, Dkt. No. 28, at 3-4 (emphasis added). The Attorney General noted at that time that the Department’s “aim is to issue the award notifications by September 30.” Id. at 2. In light of these representations, this Court adopted the Attorney General’s proposed briefing schedule after the Attorney General agreed that he would accept Chicago’s application notwithstanding the City’s refusal to comply with the notice and access conditions. Chicago sought a nationwide injunction here because, as the City explained, Reply Br., Dkt. No. 69, at 15, the Byrne JAG program is a single formula-grant program that Congress intended to be administered uniformly, and so each jurisdiction’s access to funds ought to be determined in the same manner. Additionally, Chicago noted, id., the legal issues presented in its case are identical
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across all Byrne JAG applicants—if the Attorney General lacks the authority to apply the notice and access conditions to Chicago, he lacks the authority to apply them to any other jurisdiction.
Emphasizing that reasoning, jurisdictions from across the country rushed to participate in the lawsuit as amici and express their support for a nationwide preliminary injunction. Those jurisdictions ranged from Cook County and other subgrantees of Byrne JAG funds received by the City, to the California Legislature, to thousands of local governments that participated either directly as amici (e.g., Santa Clara County, New York City, Los Angeles) or indirectly through national organizations of which they are members (like the U.S. Conference of Mayors, the National League of Cities, and the National Association of Counties). See Amicus Brief of County of Santa Clara, 36 Additional Cities, Counties and Municipal Agencies, The U.S. Conference Of Mayors, The National League Of Cities, The National Association Of Counties, The International Municipal Lawyers Association, And The International City/County Management Association (“Santa Clara Br.”), Dkt. No. 51; Amicus Brief of California State Legislature, Dkt. No. 56 Ex. 1; Amicus Brief of Cook County and Other Byrne JAG Subgrantees, Dkt. No. 66.
This Court held a hearing on the preliminary injunction on September 11. Four days later, the Court issued a 41-page opinion announcing its decision. In relevant part, the Court agreed with Chicago that the notice and access conditions “exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” PI Op., Dkt. No. 78, at 19. Additionally, this Court found that allowing the Attorney General to impose those conditions—which, if acceded to, would cause “the collapse of trust between local law enforcement and immigrant communities that is essential to ferreting out crime,” id. at 35-36—would cause irreparable harm, and that there would be a “lack of injury afflicting the Attorney General” if an injunction were to issue, id. at 38-39. Accordingly, the Court enjoined “the Attorney General’s imposition of the notice and access conditions on the Byrne JAG grant.” Id. at 40-41. The Court
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also held that its preliminary injunction would apply nationwide, explaining that there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” PI Op. 41.
Eleven days later, on September 26, the Attorney General noticed an appeal and filed a motion seeking a stay of the nationwide application of the injunction (but not challenging its application as to Chicago). The Attorney General asserted that he was facing imminent, irreparable injury in light of the Department’s previously articulated goal of issuing award documents by September 30 (despite his insistence a month ago that no expedition of these proceedings was necessary). See Stay Mot., Dkt. No. 81, at 1, 8.
ARGUMENT “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009). It is “‘an exercise of judicial discretion,’” and the “party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-434. The standard for determining whether an applicant has satisfied his burden generally “mirrors that for granting a preliminary injunction.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). Accordingly, the Attorney General “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of [a stay], that the balance of equities tips in his favor, and that [a stay] is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Nken, 556 U.S. at 435. Importantly, though, an applicant “must make a stronger threshold showing of likelihood of success to meet his burden” for a stay pending appeal because the “applicant’s arguments have already been evaluated.” In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1301 (7th Cir. 1997).
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The Attorney General can satisfy none of the requirements for a stay, let alone all of them. His motion must therefore be denied. I. THE ATTORNEY GENERAL IS UNLIKELY TO SUCCEED ON THE MERITS
The Attorney General challenges the scope of the injunction on both legal and prudential grounds. But his arguments fail on both counts, and he does not and cannot show a likelihood of success on the merits, let alone the type of strong likelihood required to support a stay.
A. Article III Permits Courts To Issue Relief That Benefits More Than The Parties Immediately Before It
The Attorney General first attacks the nationwide injunction by proposing a novel rule: A court lacks the power to enjoin conduct that benefits anyone but the parties before it. That is not the law.
Article III courts are vested with “the judicial Power of the United States,” which includes the “broad power to restrain acts” by injunction. Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 504 (7th Cir. 2008) (quoting NLRB v. Express Pub’g Co., 312 U.S. 426, 435-37 (1941)). That power extends fully to each of the “parties,” see Fed. R. Civ. P. 65(d), including, necessarily, the defendant in the case or controversy before the court. Accordingly, particularly in cases involving facial challenges to government policy, when a court “strike[s] down a statute, rule, or ordinance on the ground that it is constitutionally offensive,” that relief “generally will benefit not only the claimant but all other persons subject to the practice or the rule under attack.” Wright & Miller, Federal Practice & Procedure § 1771 (3d ed. 2017); see also, e.g., Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013) (affirming statewide preliminary injunction issued to restrain Wisconsin law); Decker v. O'Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (affirming nationwide preliminary injunction in suit by three Wisconsin plaintiffs challenging statute and Labor Department employment regulation promulgated thereunder that restricted federal funds for employment at
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sectarian schools). It is thus entirely natural that injunctive relief that ends the defendant’s injurycausing conduct may also benefit non-parties who are injured by the very same conduct. See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (“[I]f there has been a systemwide impact …there [may] be a systemwide remedy.”).1
Nor is federal courts’ injunctive power subject to arbitrary geographic constraints. Rather, its use is “determined by the nature and scope of the constitutional violation.” Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995). The injunctive power accordingly “extends across the country” and, in “appropriate circumstances,” courts thus have the power to issue nationwide injunctions. Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (collecting cases), aff’d by equally divided Court, 136 S. Ct. 2271 (2016); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.”).
The Attorney General nowhere supports the radical position that an injunction can never benefit any persons beyond those before the court. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) (cited in Stay Mot. at 4) stands only for the unassailable proposition that a plaintiff must have standing to pursue the relief she herself seeks; here, there is no question that Chicago has standing to pursue the relief sought: an injunction against the Attorney General’s notice and access conditions.
1 To the extent that the Attorney General suggests that class action certification is required in a case such as this, that cannot be right. Class status would be required to bind non-parties to the litigation, but it is not required to prevent a defendant—already a party to the case—from implementing a single law or policy that the defendant promulgated. See Fed. R. Civ. P. 65(d) and related discussion, supra at 6-7. Indeed, Rule 23(b)(2), which provides for mandatory class status in injunctive cases like this one, was modeled after pre-1966 lawsuits where blanket relief from an unlawful government policy was granted before the advent of Rule 23 as we know it. See, e.g., Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963) (striking down Mississippi transportation segregation law, and explaining that “whether or not appellants may properly represent all Negroes similarly situated [as a formal class action], the decree to which they are entitled is the same”) (cited in Fed. R. Civ. P. 23, Advisory Cmte. Notes to 1966 Amendments).
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Id. at 1650-1651 (collecting cases). And the very language the Attorney General quotes (at 5) from Lewis v. Casey, 518 U.S. 343 (1996), confirms that the proper scope of injunctive relief is determined by reference to the “inadequacy that produced the injury in fact” not the “injury in fact” alone. Id. at 357; see also Jenkins, 515 U.S. at 88, 89. Any other rule would upset the settled practice of courts in most civil-rights and constitutional cases.
To the extent the Attorney General is arguing that traditional principles of equity impose some additional limitations on the judicial power, that contention is nothing more than an assertion that the Court abused its discretion here. “[B]readth and flexibility are inherent in equitable remedies,” leaving courts considerable discretion to address the wrongs committed by the defendant. Preston v. Thompson, 589 F.2d 300, 303 (7th Cir. 1978) (quoting Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). And for the reasons discussed below, this Court’s order falls well within existing “guidelines for the exercise of the district judge’s discretion.” Swann, 402 U.S. at 15.
B. This Court Did Not Abuse Its Discretion In Issuing A Nationwide Injunction Article III does not bar this Court from enjoining an unlawful government policy as to all who are affected by it where the government is a party before the Court, as set forth above. Accordingly, the only remaining question is whether the Court abused its discretion by doing so in this case—a question on which the Seventh Circuit will accord significant deference to this Court’s determination of the right remedy for the harm and the case. See, e.g., Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010) (“[T]he appropriate scope of the injunction is left to the district court’s sound discretion”) (affirming broad injunction premised on, inter alia, defendant’s proclivity for unlawful conduct); see also, e.g., H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 843 (7th Cir. 2012) (“The appropriate scope of the injunction is best left to the district court’s sound discretion, because the district court is in the best position to weigh these
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interests.”); see also PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272 (7th Cir. 1995) (cited in Stay Mot. at 5) (“A district court ordinarily has wide latitude in fashioning injunctive relief, and we will restrict the breadth of an injunction only where the district court has abused its discretion.”) (affirming scope of injunction).
Especially in light of that deference, the Attorney General falls well short of showing that the Seventh Circuit is likely to find an abuse of discretion here.
This Court’s reasoning for the scope of the injunction is clear: This case involves a facial challenge to a single, nationally-integrated federal policy (promulgated under a formula grant program expressly premised on uniformity), and there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” PI Op. 41. The Seventh Circuit has specifically affirmed a nationwide injunction against a federal agency on those very grounds, upholding a nationwide injunction against enforcement of unlawful policies by the Department of Labor that barred funds for a federal public employment program from being paid to employees at a sectarian school because, despite being brought by plaintiffs in Milwaukee, the case had “evolved … into one challenging the facial constitutionality of [a] statute and of the Department of Labor’s [implementing] regulation.” Decker, 661 F.2d at 618 (affirming nationwide injunction in suit by Wisconsin plaintiffs and enjoining challenged federal policy). More recent nationwide injunction cases—which stress the importance of nationwide injunctions in cases involving uniform federal policies with sweeping national effect, and which also highlight the deference owed to district courts in fashioning remedies—are in accord. E.g., Int’l Refugee Assistance Project v. Trump (“IRAP”), 857 F.3d 554, 605 (4th Cir. 2017) (no abuse of discretion in issuing nationwide injunction against Trump administration policy banning people from certain countries from entering the United States), cert.
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granted, 137 S. Ct. 2080 (2017)2; Texas, 809 F.3d at 188 (finding no abuse of discretion where nationwide injunction issued as against Obama administration environmental policy, and emphasizing “uniform,” “unified” nature of federal policy at issue).
And the Attorney General’s own arguments offer yet another reason for a nationwide injunction. The Attorney General indicates that, if a stay is granted, the Department intends to impose the unlawful notice and access conditions on the nearly 1,000 jurisdictions that have applied for Byrne JAG funds, see Stay Mot. at 8, including amici and proposed intervenors here, who hail from all around the country. See id. at 9 (claiming stay would “preserv[e] the Department’s ability to pursue imposing the notice and access conditions for 2017 Byrne JAG grants”). Broad injunctions are particularly proper where “a proclivity for unlawful conduct has been shown.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (cited in Russian Media Grp., 598 F.3d at 307).
The Attorney General cites no authority that actually supports his purported prudential argument. He relies instead (at 5) on the Seventh Circuit’s PepsiCo decision for language about exceeding the plaintiff’s “protectible rights,” but PepsiCo, a trade secrets case involving an employment agreement between private parties, is not on point, and in all events, it affirmed a broad injunction based on the substantial discretion owed to district courts. 54 F.3d at 1272. Similarly, he quotes Madsen v. Women's Health Center for the proposition “that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” 512 U.S. 753, 765 (1994) (quoting Yamasaki, 442 U.S. at 702), but offers no example of any case where this
2 The Attorney General’s attempt to distinguish IRAP (at 7) falls flat. Those affected by the unlawful notice and access conditions (i.e., nearly 1,000 local governments across the country) are plainly “dispersed throughout the United States,” 857 F.3d at 605. The conditions at issue not only do implicate immigration policy, but also arise in the context of a federal formula grant program where there is a comparable interest in preserving a uniform national rule. And as with the Establishment Clause violation at issue in IRAP, enforcement of the conditions against nonplaintiffs would have broader effects in this case too, among other reasons because Byrne JAG applicants’ fates are bound together by a national formula that allocates a set total amount of funds.
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statement was used to justify artificially restricting an injunction in the manner proposed here. Cf. Yamasaki, 442 U.S. at 702 (noting that nationwide injunctions may be proper in Rule 23(b)(2) cases “since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class”). And he cites Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010), but that case, in which the Court narrowed an injunction so that it did not apply to discrete policies that did not harm the plaintiff, supports Chicago. Here, a single policy inflicts the same harm on Chicago and all Byrne JAG applicants. Under Monsanto, there is no reason to pare back the injunctive relief here because every aspect of the enjoined policy harms Chicago.
This Court correctly recognized the fundamental efficiency and fairness of a nationwide injunction in this case, which presents a facial challenge to a single set of conditions imposed nationwide on a uniformly administered federal formula grant program. The Attorney General offers no reason to change that position. II. THE ATTORNEY GENERAL WILL NOT SUFFER IRREPARABLE HARM ABSENT
A STAY This Court may independently deny the stay request here because the Attorney General will suffer no irreparable harm during the pendency of the appeal. As this Court already found, there is no plausible “claim that a delay in imposition of the new Byrne JAG conditions would permanently harm” any “interest that would be difficult to remedy for money damages.” PI Op. 39. Indeed, the Byrne JAG program has operated since its inception without the notice and access conditions, all while Chicago and a host of other jurisdictions have carried out their longstanding Welcoming Citytype policies. This Court’s injunction simply restores that status quo, which has been in place— without any irreparable harm to the federal government—for over a decade. There is no reason why continuing to preserve that same status quo during the pendency of an appeal in this case would suddenly lead to irreparable injury. To the contrary, the Seventh Circuit has routinely equated “preserving the status quo” with “preventing irreparable harm.” See e.g., American Can Co. v.
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Mansukhani, 742 F.2d 314, 323 (7th Cir. 1984) (emphasis added); IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 527 (7th Cir. 1996); Gray-Bey v. United States, 201 F.3d 866, 869 (7th Cir. 2000).
The Attorney General by contrast seeks a stay that would disrupt the status quo. That is
improper; indeed, as the Supreme Court has explained, the defining feature of a “stay pending
appeal” is that it “return[s] to” rather than “alter[s] the legal status quo.” Nken, 556 U.S. at 428-429; see, e.g., Wright & Miller, Federal Practice & Procedure § 2948 (3d ed. 2017) (“[A stay] may not issue if it
would disturb the status quo.”). Courts will not stay “a district court’s order [that] merely return[s]
the nation temporarily to the position it has occupied for many previous years.” Washington v. Trump,
847 F.3d 1151, 1168 (9th Cir. 2017). And the suggestion of a stay is particularly improper here,
where the Attorney General himself disclaimed any potential urgency as to the notice and access
conditions earlier in this litigation when it suited him to do so, and where the burden the Attorney
General faces is nothing more than showing that his conditions are lawful before he imposes them on the Nation’s local governments.3
In fact, the Attorney General’s claim of irreparable harm is particularly weak here, given the
unlawful nature of the notice and access conditions. The Executive has no interest in acting
contrary to law, and thus suffers no injury from an injunction that “curtail[s] unlawful executive
action.” Hawaii v. Trump, 859 F.3d 741, 784 (9th Cir.), cert. granted, 137 S. Ct. 2080 (2017); Texas, 809
3 In lieu of delaying the notice and access conditions, the Attorney General claims that if a stay is not granted he might instead withhold all Byrne JAG funds from nearly 1,000 jurisdictions until the resolution of this lawsuit—which he contends would also constitute irreparable injury. See Stay Mot. at 9. Such a self-inflicted injury—voluntarily sabotaging the entire Byrne JAG program to force compliance with conditions this Court has found unlawful—cannot constitute irreparable injury justifying a stay. And in any event, the Attorney General has no power even to pursue such an endrun around this Court’s injunction. Whatever discretion the Attorney General may have to delay disbursement of Byrne JAG funds for ordinary administrative reasons, he cannot suspend disbursement solely to frustrate this Court’s injunction, or to pressure jurisdictions to adopt conditions that this Court has already held to be unlawful. And the Attorney General certainly has no ground for delaying Chicago’s Byrne JAG award past September 30—as he has done already— given that he has sought no stay of the injunction at all as to Chicago.
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F.3d at 187; IRAP, 857 F.3d at 603. “If anything,” courts have held, “the system is improved by such an injunction.” IRAP, 857 F.3d at 603.
The Attorney General falls back on the argument that irreparable harm occurs whenever the Executive is unable to swiftly implement its preferred policies. But courts have repeatedly rejected that assertion, which would effectively mean there is irreparable injury “whenever an executive action is enjoined.” IRAP, 857 F.3d at 603; Hawaii, 859 F.3d at 783 & n.22; see also Texas, 809 F.3d at 186. It would be strange to treat the natural—indeed, intended—consequence of an injunction (namely, to delay executive action that is likely unlawful) as a reason to prevent it from going into effect. That is why courts hold that a delay in implementing a new program caused by an injunction is not irreparable injury: “Injunctions often cause delays, and the government can resume work if it prevails on the merits.” Texas v. United States, 787 F.3d 733, 767-768 (5th Cir. 2015). III. THE EQUITIES AND THE PUBLIC INTEREST DO NOT FAVOR A STAY
This Court can also independently deny the stay request because it is unjust and manifestly contrary to the public interest. In essence, the Attorney General seeks nothing less than permission to subject nearly 1,000 jurisdictions across the country to conditions that this Court has already held to be unlawful. The public would be actively harmed by the imposition of unlawful policy conditions on local governments—particularly so here, where the conditions purport to nullify local policies that promote cooperation between immigrant communities and police, irreparably injuring Chicago and other jurisdictions with similar policies. See PI Op. 37.
And the public and the judiciary would also be harmed by the needless administrative burden that the Attorney General would foist upon them to litigate seriatim injunctions of the same unlawful action. According to the Attorney General, in order to block the application of the unlawful conditions as to them, each of the nearly 1,000 applicants for Byrne JAG funds would need to “bring their own challenges.” Stay Mot. at 6. Such needless, duplicative litigation would be costly
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and wasteful. Indeed, for each of those suits the public will pay three times—for the Attorney General’s litigation costs, for the litigation costs of the individual state or local government, and for the cost of the court’s time and effort. And while such costs are sometimes necessary, that is not the case here: As this Court held, there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” PI Op. 41. The Attorney General never challenges that reasoning, and yet he maintains that a proliferation of needless and wasteful copycat lawsuits would somehow serve the public interest.
The Attorney General attempts to downplay the costs of the duplicative litigation under his approach by asserting that “most” jurisdictions are “perfectly content to comply with the notice and access conditions”—an inference he draws from the fact that only “a few” have yet filed lawsuits of their own. Stay Mot. at 6. But that assertion ignores the great many jurisdictions—accounting for nearly 20% of all Byrne JAG funds allocated to local governments nationally—that have participated in this action directly as amici curiae, as well as the thousands of jurisdictions that have participated through national associations (e.g., the U.S. Conference of Mayors, the National League of Cities, and the National Association of Counties). It was well known that Chicago was seeking a nationwide injunction, and it is well settled that such relief is within the power of the federal courts. There was no need for each grant applicant to file suit. Instead, thousands of them appeared or made their voices heard in this case—and made clear to the Court that they view a “nationwide injunction” as essential “to protect the safety” of their communities. Santa Clara Br. 15.4 The public interest weighs strongly against the Attorney General’s stay request.
4 Further, the fact that there may be jurisdictions that agree with the notice and access conditions is not a reason to stay the nationwide impact of the injunction. Even with the injunction, those jurisdictions remain free to voluntarily provide the notice, and grant the access, that the conditions seek to require.
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CONCLUSION This Court should deny the Attorney General’s request for a stay pending appeal.

October 6, 2017
JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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CERTIFICATE OF SERVICE On the 6th day of October, 2017, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL

 
 Case: 1:17-cv-05720 Document #: 98 Filed: 10/13/17 Page 1 of 17 PageID #:1378

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,

Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,

Case No. 17 C 5720 Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER

The Attorney General moves to stay the nationwide

application of this Court’s preliminary injunction against

imposition of certain conditions on the 2017 Byrne JAG grant

pending resolution of the Attorney General’s appeal to the

Seventh Circuit Court of Appeals. For the reasons stated

herein, Defendant’s Motion to Stay Nationwide Application of

Preliminary Injunction [ECF No. 80] is denied.

I. BACKGROUND

The Court assumes familiarity with the underlying facts of

this case as recited in its opinion granting in part the City of

Chicago’s motion for a preliminary injunction. See, generally,

City of Chicago v. Sessions, No. 17 C 5720, 2017 U.S. Dist.

LEXIS 149847 (N.D. Ill. Sep. 15, 2017). In support of the

instant motion, the Attorney General has pointed to additional

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facts that merit discussion here. The Attorney General’s office has received nearly a thousand applications for Byrne JAG funding for FY 2017, and nearly all those applications await award notifications from the Department of Justice (the “Department”). (See, ECF No. 82, Second Decl. of Alan R. Hanson, ¶ 4.) In prior years, the majority of Byrne JAG awards were already issued by this time of the year. (Id. ¶ 9.) The Attorney General argues that this Court’s nationwide preliminary injunction prevents the Department from issuing the Byrne JAG award notifications because, even if the appeal is successful, the Attorney General will be unable to add the notice and access conditions after the award notifications issue. The Attorney General urges that a significant delay in the grant-making process past September of this year raises the prospect of imposing heavy burdens on localities with relatively small budgets (id. ¶ 11), disrupting state grant-making processes under which states issue sub-awards of Byrne JAG funds (id. ¶ 12), and undermining recovery efforts in jurisdictions that have recently suffered natural disasters (id. ¶ 13). To avoid this delay and the attendant burdens, the Attorney General requests a stay of the preliminary injunction.
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II. LEGAL STANDARD The analysis for “granting a stay pending appeal mirrors that for granting a preliminary injunction.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). In determining whether to grant a stay, the court should consider “the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other.” Ibid. Whether the movant can demonstrate the first two factors is a threshold issue. See, In re Forty-Eight Insulations, 115 F.3d 1294, 1300 (7th Cir. 1997). “If the movant can make these threshold showings, the court then moves on to balance the relative harms considering all four factors using a ‘sliding scale’ approach.” Id. at 1300-01. A stay pending appeal is intended “to minimize the costs of error” and “to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits.” In re A & F Enters., 742 F.3d at 766. As the Supreme Court recently stated, “[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l
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Refugee Assistance Project (“IRAP”), 137 S.Ct. 2080, 2087 (2017) (citations omitted).
III. ANALYSIS The Attorney General argues that the City of Chicago (the “City”) lacks Article III standing for any remedy that goes beyond its alleged injury-in-fact. (The Court notes that this argument may be mooted by the U.S. Conference of Mayors’ pending Motion to Intervene, but in this Opinion does not consider the effect of such an intervention.) There is no dispute that the City has standing vis-à-vis the notice and access conditions. Nonetheless, the Attorney General contends that the City’s standing is cut off at its jurisdictional boundaries, preventing the Court from fashioning a remedy any broader in scope than that required to redress the City’s injury. The Court disagrees. Once a constitutional violation has been shown, “the nature of the remedy must be determined by the nature and the scope of the constitutional violation.” Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997); see also, Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation.”) (quotation omitted). The City has demonstrated a likely constitutional violation. It is the “nature and scope of the constitutional violation” that defines the remedy for this
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violation, not the particular plaintiff. Ibid. Here, the

constitutional transgression is national in scope because the

notice and access conditions, shown to be likely

unconstitutional, were imposed nationwide. Thus, a preliminary

injunction may “bind” the “part[y]” before the Court, in this

case the Attorney General, to prevent the constitutional

violations at issue regardless of where they may occur. FED. R.

CIV. P. 65(d).

“[O]nce a constitutional violation is

demonstrated, the scope of a district court’s equitable powers

to remedy past wrongs is broad, for breadth and flexibility are

inherent in equitable remedies.” Preston v. Thompson, 589 F.2d

300, 303 (7th Cir. 1978) (quoting Swann v. Charlotte-Mecklenburg

Bd. of Educ., 402 U.S. 1, 15 (1971)). The Constitution vests a

district court with “the judicial Power of the United States.”

U.S. Const. art. III, § 1. This power is not limited to the

jurisdiction in which the district court sits: “[i]t is not

beyond the power of a court, in appropriate circumstances, to

issue a nationwide injunction.” Texas v. U.S., 809 F.3d 134,

188 (5th Cir. 2015), as revised (Nov. 25, 2015), aff’d by

equally divided court, 136 S.Ct. 2271 (2016).

The circumstances here are appropriate. Because the

Attorney General’s authority, or lack thereof, will not vary by

jurisdiction, the cases cited in support of a stay are

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inapposite. In Lewis v. Casey, 518 U.S. 343 (1996), the

evidence failed to show systemic violations necessary to justify

a state-wide injunction in Arizona’s prison libraries, as the

challenged conduct could have been present in some prisons but

not others. Id. at 359-60. This case, on the other hand,

implicates a facial challenge to a federal statute; the Attorney

General’s authority to impose Byrne JAG conditions on the City

will not differ from his authority to do so elsewhere. No

additional evidence is needed to justify the nationwide scope of

the injunction because the Attorney General’s authority does not

vary state by state like the conditions of access to legal

libraries may vary prison to prison. See, id. Town of Chester,

N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1648-49 (2017), is

also unavailing.

There, the Court analyzed whether an

intervenor as a matter of right has standing to claim a remedy

separate from that sought by the plaintiff. This Court has

found no case extending Town of Chester’s rationale to the

proposition advanced by the Attorney General - that, regardless

of the likely constitutional violation shown, a party with

standing is barred from injunctive relief broader than that

which directly impacts it.

Next, the Attorney General argues that equitable principles

require that the injunction be no more burdensome than necessary

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to resolve a plaintiff’s injury. While true that an injunction should be “no more burdensome than necessary to provide complete relief,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 778 (1994), a nationwide injunction is necessary to provide complete relief from the likely constitutional violation at issue here. See, McBride, 124 F.3d at 873; see also, Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963) (“The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated.”). As the City’s cited authority indicates, nationwide injunctions have been upheld numerous times where the remedy provided relief to non-parties as well as the plaintiff. See, e.g., Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980); Texas v. U.S., 809 F.3d at 187-88 n. 211 (upholding nationwide scope of preliminary injunction and collecting cases).
Most significantly, a recent Supreme Court decision validates the nationwide application of the preliminary injunction here. In International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017), vacated as moot, 583 U.S. __ (2017), the Fourth Circuit upheld the nationwide scope of a preliminary injunction enjoining, inter alia, portions of the President’s executive order barring certain foreign nationals
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from entering the United States. The government appealed and, while the appeal was pending, moved for a stay of the injunction. See, Trump v. IRAP, 137 S.Ct. 2080, 2083 (2017). The Supreme Court granted in part and denied in part the motion to stay the nationwide injunction. Id. at 2089. Although the Supreme Court narrowed the categories of persons to whom the injunction applied, the nationwide application of the injunction was upheld “with respect to parties similarly situated to [the plaintiffs].” Id. at 2088. Consistent with the Supreme Court’s analysis, the scope of the nationwide preliminary injunction at issue here includes similarly situated states and local governments. In fact, the dissenting Justices made the exact argument the Attorney General advances here, specifically criticizing the majority for upholding the scope of the injunction for other similarly situated persons and ignoring that “a court’s role is to provide relief only to claimants.” Id. at 2090 (Thomas, J., dissenting) (quotations and alterations omitted) (“But the Court takes the additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad.”). The Attorney General’s argument to stay the injunction parallels that adopted by the dissent but clearly rejected by the majority of the Supreme
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Court. See, id. at 2088. Thus, the Court is duty-bound to reject it here as well.
Similarly, the Seventh Circuit has upheld a nationwide injunction where the evidence before the court primarily involved one jurisdiction. In Decker, the appellant argued that the district court erred by entering a nationwide injunction where the fact-finding had focused on Milwaukee County. See, Decker, 661 F.2d at 617-18. The court affirmed the nationwide scope of the preliminary injunction, reasoning that the court’s “analysis . . . relied primarily on the statute and regulation and ha[d] used the evidence on funding in Milwaukee County merely as illustration.” Id. at 618.
The Attorney General’s authority for cabining injunctive relief to only the plaintiff’s injury is distinguishable. In Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), the Supreme Court reviewed a permanent injunction based on a violation of the National Environmental Policy Act where a federal agency failed to complete an environmental impact statement prior to deregulating alfalfa. The Supreme Court overturned the injunction, emphasizing that the agency could lawfully approve a partial deregulation of alfalfa before completing the new environmental impact statement without harming the plaintiffs. Id. at 165-66. Because the district
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court had enjoined the agency from approving not just a complete but also a partial deregulation, the injunction was overbroad. Ibid. Monsanto does not apply here. In Monsanto, the injunction prevented the agency from using its lawful authority to impose a partial deregulation that had not been shown to harm the plaintiffs. See, ibid. Here, the Attorney General likely has no lawful authority to impose the notice and access conditions. An injunction is not overbroad where it merely inhibits the Attorney General from acting beyond his likely statutory authority. Madsen v. Women’s Health Center, 512 U.S. 753 (1994), is also inapplicable. Because the injunction there restricted the defendants’ First Amendment rights, Madsen applied a different standard. See, id. at 765. There, the Court assessed “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Ibid. No similar First Amendment concern is present here.
With respect to equitable considerations, the Attorney General argues that staying the nationwide sweep of the injunction would allow the Department to include the notice and access conditions in award notifications while a decision on the merits is reached, thus preventing burdens on localities that might attend a significant delay in Byrne JAG funding. The
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difficulty with this proposition is that, in essence, the proposed “fix” would allow the Attorney General to impose what this Court has ruled are likely unconstitutional conditions across a number of jurisdictions prior to a decision on the merits. This is not an equitable result, particularly where the Court’s preliminary injunction merely preserves the status quo to await a final decision. See, Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 65.20 (2017); see also, Am. Med. Ass’n v. Weinberger, 522 F.2d 921, 926 (7th Cir. 1975) (upholding preliminary injunction that preserved status quo for resolution on the merits).
Finally, the Attorney General argues that applicants who contest the conditions may file their own lawsuits while jurisdictions that do not contest the conditions may receive immediate funding by acceding to the notice and access conditions while the appeal is pending. Considering that thirty-seven cities and counties have signed on as amicus curiae in support of the City, judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question before this Court. (See, generally, ECF No. 51, Brief of Amici Curiae County of Santa Clara, 36 Additional Cities, Counties and Municipal Agencies, the U.S. Conference of Mayors, the National
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League of Cities, the National Association of Counties, the

International Municipal Lawyers Association, and the

International City/County Management Association (“Amicus Brief

of Counties, Cities, and Others”).)

Furthermore, all

jurisdictions remain free to adopt the substance of the notice

and access conditions if they wish to do so. The injunction

only prevents the Attorney General from imposing them as

conditions on the Byrne JAG funds. If, however, the Attorney

General wishes to reserve his right to tether the notice and

access conditions to eligibility for these funds, he must await

a decision that upholds his authority to do so.

Although not specifically raised by the Attorney General,

there are reasons to be cautious when imposing a nationwide

injunction. Recent legal scholarship has identified significant

concerns related to the use of nationwide injunctions at the

district court and circuit court levels. See, generally, Samuel

L. Bray, Multiple Chancellors: Reforming the National Injunction

(February 9, 2017) (forthcoming publication), available at SSRN:

https://ssrn.com/abstract=2864175; Michael T. Morley, De Facto

Class Actions? Plaintiff- and Defendant-Oriented Injunctions in

Voting Rights, Election Law, and Other Constitutional Cases, 39

Harv. J.L. & Pub. Pol’y 487 (2016); Maureen Carroll, Aggregation

for Me, but Not for Thee: The Rise of Common Claims in Non-

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Class Litigation, 36 Cardozo L. Rev. 2017 (2015). Nationwide injunctions may increase forum shopping, lead to conflicting injunctions, and stymie the development of the law within the Circuits prior to Supreme Court review. These concerns are not insignificant but fail to overcome the benefits of a nationwide injunction in this specific instance. First and foremost, there has been no evidence of forum shopping here and neither party has argued as such. Second, as explained above, judicial economy favors avoiding “a flood of duplicative litigation” from other Byrne JAG applicants who want the same protections as the City of Chicago. Nat’l Mining Ass’n v. United States Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). Certainly, it would at least include the thirty-seven cities and counties that filed briefs in support of the City of Chicago as amici. See, ECF No. 51, Amicus Brief of Counties, Cities, and Others; see also, A-1 Cigarette Vending, Inc. v. U.S., 49 Fed. Cl. 345, 358 (2001) (“It would be senseless to require the relitigation of the validity of a regulation in all federal district courts”).
Nevertheless, issuing a nationwide injunction should not be a default approach. It is an extraordinary remedy that should be limited by the nature of the constitutional violation and subject to prudent use by the courts. See, Califano v. Yamaski, 442 U.S. 682, 702 (1979) (noting that injunctive relief is
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limited to the “extent of the violation established”). In this case, the Court finds it an appropriate remedy based on the need for federal uniformity and the unfairness resulting from disparate applications.
The rule of law is undermined where a court holds that the Attorney General is likely engaging in legally unauthorized conduct, but nevertheless allows that conduct in other jurisdictions across the country. The Courts have a “wellrecognized interest in ensuring that federal courts interpret federal law in a uniform way.” Williams v. Taylor, 529 U.S. 362, 389–90 (2000). Further, the public interest and perception of the law supports “having congressional enactments properly interpreted and applied. . . . As it is principally the protection of the public interest with which [the court is] concerned, no artificial restrictions of the court’s power to grant equitable relief in the furtherance of that interest can be acknowledged.” Wirtz v. Baldor Elec. Co., 337 F.2d 518, 53435 (D.C. Cir. 1963) (internal quotations and citations omitted). All similarly-situated persons are entitled to similar outcomes under the law, and as a corollary, an injunction that results in unequal treatment of litigants appears arbitrary. See, id. at 534 (“[Where] a lower court . . . has spoken, that court would ordinarily give the same relief to any individual who comes to
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it with an essentially similar cause of action. . . . The rule of law requires no less.”); see also, Sandford v. R. L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978) (“[T]he settled rule is that whether plaintiff proceeds as an individual or on a class suit basis, the requested injunctive relief generally will benefit not only the claimant but all other persons subject to the practice or the rule under attack.”) (internal quotations and alterations omitted). An injunction more restricted in scope would leave the Attorney General free to continue enforcing the likely invalid conditions against all other Byrne JAG applicants. This state of affairs flies in the face of the rule of law and the role of the courts to ensure the rule of law is enforced.
This is especially true considering the judiciary has an important role to play in enforcing the separation of powers. See, NLRB v. Canning, 134 S.Ct. 2550, 2559-60 (2014) (“[T]he separation of powers . . . serve[s] to safeguard individual liberty, and . . . it is the duty of the judicial department — in a separation-of-powers case as in any other — to say what the law is.”) (internal quotations and citations omitted). “When the court believes the underlying right to be highly significant, it may write injunctive relief as broad as the right itself.” Zamecnik v. Indian Prairie Sch. Dist. # 204, 636
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F.3d 874, 879 (7th Cir. 2011) (Posner, J.) (quotations omitted). District courts are given broad authority to determine the appropriate scope of an injunction. See, United States v. Capitol Serv., Inc., 756 F.2d 502, 507 (7th Cir. 1985) (“Geographical limitations regarding the issues at trial do not alter the court’s broad remedial powers.”); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201-02 (7th Cir. 1971) (affirming the “district court’s power to consider extending relief beyond the named plaintiff” “where justice requires such action”). If this Court is incorrect, the appellate process is the vehicle to correct the error.
The Court is sympathetic to the Attorney General’s quandary and agrees that, ideally, a final decision on the merits would be reached before practical constraints force a surrender of his policy position (at least for FY 2017). However, this concern is better dealt with through expedited proceedings than a stay that would likely result in imposition of unconstitutional conditions on Byrne JAG applicants. The Court notes that the Attorney General opposed the City’s Motion for Expedited Briefing that would have resulted in an earlier decision on the City’s Motion for a Preliminary Injunction. (See, ECF No. 28, Def.’s Opp. to Pl.’s Mot. to Expedite Briefing Schedule.)
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Applicants for a stay have a threshold burden to demonstrate both a likelihood of success on the merits and that irreparable harm will result if the stay is denied. Matter of Forty-Eight Insulations, Inc., 115 F.3d at 1300–01. Where the applicant “does not make the requisite showings on either of [the threshold] factors, the court’s inquiry into the balance of harms is unnecessary, and the stay should be denied without further analysis.” Id. at 1301. Because the Attorney General is not able to meet its threshold burden of showing some likelihood of success on its motion to stay nationwide application of the preliminary injunction, no further analysis is necessary. See, ibid.
IV. CONCLUSION For the reasons stated herein, the Attorney General’s Motion to Stay Nationwide Application of Preliminary Injunction [ECF No. 80] is denied.
IT IS SO ORDERED.

Dated: October 13, 2017

Harry D. Leinenweber, Judge United States District Court
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 Case: 1:17-cv-05720 Document #: 99 Filed: 10/13/17 Page 1 of 5 PageID #:1395

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

CHICAGO’S MOTION FOR PARTIAL RECONSIDERATION Plaintiff City of Chicago (“Chicago” or the “City”), by its counsel, hereby moves for partial reconsideration of this Court’s September 15, 2017 Order, granting in part and denying in part Chicago’s motion for a preliminary injunction restraining Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, from imposing new and unlawful conditions on FY 2017 Byrne JAG funds. In support hereof, Plaintiff states as follows: 1. Plaintiff’s Complaint seeks to enjoin Defendant from imposing unauthorized and unconstitutional conditions on an established grant program—the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program—that Plaintiff has relied on for over a decade to promote public safety. These conditions seek to undermine the established public safety policies of cities like Chicago. 2. In particular, the new conditions would require Plaintiff to (1) provide at least 48 hours’ advance notice to the Department of Homeland Security (“DHS”) regarding the scheduled release date and time of a non-citizen in the jurisdiction’s custody when DHS requests such notice in order to take custody of the non-citizens pursuant to the Immigration and Nationality Act,
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(2) permit DHS personnel to access any correctional or detention facility in order to meet with a non-citizen (or an individual believed to be a non-citizen) and inquire as to his or her right to be or remain in the United States, and (3) certify compliance with 8 U.S.C. § 1373.
3. On September 15, 2017, the Court issued a preliminary injunction “against the Attorney General’s imposition of the notice and access conditions.” PI Op. 40-41. Those conditions, this Court held, “exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” Id. at 19. Additionally, those conditions would wreak “irreparable harm if an injunction does not issue.” Id. at 41.
4. In that same order, the Court declined to enjoin the § 1373 condition, which Chicago contends is a violation of Tenth Amendment anti-commandeering principles. Relying on repeated representations from the Attorney General that § 1373 neither authorizes federal authorities to insist on receiving notice before Chicago releases a detainee nor imposes any other affirmative obligation on Chicago, see, e.g., Oral Arg. Tr. 59:7-11 (DOJ Attorney: “[A]ffirmative obligations to actually go and employ the regulatory system would be one thing, but 1373 doesn’t require that at all.”), this Court held that Chicago had not shown a likelihood of success on the merits. “[O]nly affirmative demands on states,” this Court said, “constitute a violation of the Tenth Amendment.” PI Op. 35. And § 1373, according to both its literal text and the Government’s assurances regarding its implementation, “imposes no affirmative obligation on local governments.” Id. at 34.
5. On October 12, 2017, however—just a day before the time to file a Rule 59(e) motion for reconsideration expired—the Department issued a letter to Chicago contradicting its earlier representations to this Court. First, the Letter requires Chicago to take affirmative action and “communicate” with its employees that they are free on City-time to enforce federal immigration law by sharing immigration status information with federal authorities. Second, the Letter makes plain that the Department will seek to use the Section 1373 condition far more expansively than
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Case: 1:17-cv-05720 Document #: 99 Filed: 10/13/17 Page 3 of 5 PageID #:1397 previously disclosed—to require not only cooperation in the sharing of immigration status information, but also information concerning general custody status and release dates (and presumably other information unrelated to immigration status).
6. Chicago makes this Motion for Partial Reconsideration on the ground that the Department’s contradiction of its earlier representations—representations that formed a key basis for this Court’s decision that § 1373 likely did not violate anti-commandeering principles—justifies reconsideration of this Court’s denial of a preliminary injunction of the § 1373 condition. And on reconsideration, this Court should enjoin the imposition of the grant condition requiring certification of compliance with § 1373. These points are described in detail in Chicago’s accompanying Memorandum in Support and supporting materials.
WHEREFORE, Plaintiff respectfully requests that this Court partially reconsider its September 15, 2017 Order and enjoin the Attorney General from imposing the § 1373 condition on FY 2017 Byrne JAG funds.
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October 13, 2017.
JAMIE S. GORELICK (pro hac vice pending) DAVID W. OGDEN (pro hac vice pending) ARI HOLTZBLATT (pro hac vice pending) ARI SAVITZKY (pro hac vice pending) MOLLY JENNINGS (pro hac vice pending) BRIDGET FAHEY* (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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Case: 1:17-cv-05720 Document #: 99 Filed: 10/13/17 Page 5 of 5 PageID #:1399 CERTIFICATE OF SERVICE
On the 13th day of October, 2017, I electronically filed the foregoing using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL
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 Case: 1:17-cv-05720 Document #: 101 Filed: 10/13/17 Page 1 of 9 PageID #:1403

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

MEMORANDUM OF LAW IN SUPPORT OF CHICAGO’S MOTION FOR PARTIAL RECONSIDERATION
Chicago seeks partial reconsideration of this Court’s decision on the City’s motion for a preliminary injunction based on new evidence that was first made available to the City only yesterday morning. That evidence is a letter from the Department of Justice (the “Department”) to the City (the “Letter,” attached as Exhibit A to the Holtzblatt Declaration) offering a stark new interpretation of 8 U.S.C. § 1373 that departs from the position the Attorney General took before the Court earlier in this litigation and erodes critical bases for this Court’s decision with respect to Section 1373 compliance. The Letter contradicts the Attorney General’s prior representation to this Court that 8 U.S.C. § 1373 imposes no affirmative obligations on Chicago and for the first time attempts to extend Section 1373 to City policy governing whether and under what circumstances to notify federal officials of the release date or custody status of individuals held by the City. This Court had relied on the Attorney General’s repeated assurances that Section 1373 imposes no affirmative obligations on Chicago and that Section 1373 in no way authorizes the Department’s “notice” condition in determining that Chicago is unlikely to succeed on its claim that Section 1373 violates constitutional anti-commandeering principles. The Attorney General’s new positions call

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this Court’s decision on the Section 1373 condition into question and thus warrant reconsideration as to that ruling.
BACKGROUND AND ARGUMENT In Chicago’s complaint initiating this lawsuit, the City explained that the Department had “contradicted itself in a bid to interpret Section 1373,” stating on the one hand that “Section 1373 requires no affirmative action by States and local governments,” Complaint ¶ 117 (citing U.S. Dep’t of Justice, Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373, at 1 (2016), https://tinyurl.com/y8e4j8es), but on the other that “States and local governments may need to provide affirmative instruction to employees to be in compliance,” id. (citing Memorandum from Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol V. Mason, Assistant Attorney Gen., Office of Justice Programs, U.S. Dep’t of Justice, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients 6 (May 31, 2016), https://tinyurl.com/y9rpwge4). In its motion for a preliminary injunction, Chicago sought to enjoin the Section 1373 condition as a violation of Tenth Amendment anti-commandeering principles, in part because, based on the Department’s prior statements, the City understood that Section 1373 could be used to impose an affirmative obligation on the City. See PI Mem. at 20-21, Dkt. No. 23; see also, e.g., Printz v. United States, 521 U.S. 898, 935 (1997) (the federal government cannot “command the States’ officers . . . to administer or enforce a federal regulatory program”). During the hearing on the City’s motion, this Court repeatedly sought to clarify whether the Attorney General understood Section 1373 to impose any affirmative obligations on the City. In response to the Court’s questions, the Attorney General disclaimed, in clear terms, that there were any such obligations, explaining that “the current administration very much believes in the 10th Amendment and separation of powers, and so affirmative obligations to actually go and employ the regulatory system would be one thing,
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but 1373 doesn’t require that at all.” E.g., Oral Arg. Tr. 59:7-11; see also id. 51:4-9 (“Section 1373 . . . just bars the City from having a policy that bars itself the reporting of that information.”).
This Court further questioned the Attorney General about whether Section 1373 authorized the Department’s “notice” condition. The Attorney General responded by expressly assuring the Court that “1373 does not specifically authorize” federal authorities to insist on receiving notice “before [a] person is released” from the City’s custody. Oral Arg. Tr. 54:6-12.
This Court held that Chicago had not shown a likelihood of success on the merits because the Court concluded that “only affirmative demands on states constitute a violation of the Tenth Amendment,” and “[r]ead literally, Section 1373 imposes no affirmative obligation on local governments,” as the Attorney General had insisted at the hearing. Id. at 34-35 (emphasis added). The Court recognized, however, that Section 1373 might still “practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program” in a manner that was in considerable tension—and perhaps even outright conflict—with Printz and the Tenth Amendment. Id. at 34. The Court further emphasized, presumably also relying on the Attorney General’s representations during the hearing, what it understood to be Section 1373’s limited scope: prohibiting localities “only from directly restricting the voluntary exchange of immigration information with the INS.” Id. at 29 (emphasis added).
On October 12, Chicago received the Letter from the Department announcing its preliminary determination that Chicago was not in compliance with Section 1373 and would thus be ineligible for Byrne JAG funding.1 Though preliminary as to Chicago’s compliance with Section 1373, the Letter announces a final, definitive, and expansive new interpretation of Section 1373,
1 As recounted in Chicago’s Complaint, Dkt. No. 1, ¶¶ 3-4, 44-54, on April 21, 2017, the Department sought a certification from Chicago that the City was in compliance with Section 1373, and Chicago so certified on June 30, 2017. See Ex. A, Complaint, Dkt. No. 1-1 (Siskel Mem. to Office of Justice Programs, U.S. Dep’t of Justice).
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under which policies that prohibit the sharing of information other than immigration status information are nevertheless within Section 1373’s ambit, and in which Chicago is required to affirmatively instruct its employees that they may cooperate with federal immigration authorities in order to be considered in compliance with the statute.
First, the Letter addresses Section 42 of Chicago’s Welcoming City Ordinance (“WCO”), which provides that no City agency or agent shall “expend their time responding to [U.S. Immigration and Customs Enforcement (“ICE”)] inquiries or communicating with ICE regarding a person’s custody status or release date.” Chi. Mun. Code § 2-173-42 (emphasis added). The Letter asserts without elaboration that Section 42 “restricts the sharing of information regarding immigration status in violation of 8 U.S.C. § 1373(a).” Letter at 1. This is the first indication that the Department believes that a person’s “custody status” and “release date” are “information regarding immigration status.”
The Letter does not explain how, as a matter of statutory interpretation or basic common sense, the information-sharing restricted by Section 42 of the WCO regarding a person’s “custody status” and “release date” qualifies as “information regarding . . . citizenship or immigration status” under Section 1373(a). Information about whether a person is in custody and, if so, his or her expected date of release indicate nothing about that person’s immigration status. Immigration status is plainly a different category of information than generic facts about a person’s detention and date of release. As the Northern District of California just recently explained, “no plausible reading of ‘information regarding … citizenship or immigration status’ encompasses the release date of an undocumented inmate.” Steinle v. City and County of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).
Next, the Letter says that Sections 20 and 30 of the WCO, which restrict information sharing regarding immigration status when such sharing is not required by state or federal law, “may
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violate 8 U.S.C. § 1373, depending on how [the City] interprets and applies them.” Letter at 1. The Letter then notes the Department’s preferred interpretations and asks that the City certify that it has adopted them. But it also goes one step further, stating that even if the City has adopted a permissible interpretation as a matter of law, it will “violate[] section 1373[]” if it does not follow the Department’s instructions regarding how to implement that law by “communicat[ing] [the Department’s preferred] interpretation to its officers and employees.” Id. at 2. According to the Letter, then, Chicago must do more than not restrict information sharing; it must affirmatively instruct its employees that they are free to cooperate with federal immigration authorities in enforcing federal immigration law by sharing immigration status (and presumably, release date and custody) information. In other words, it must, directly contrary to the Attorney General’s representations to this Court, comply with an “affirmative obligation[] to actually go and employ the regulatory system.” Oral Arg. Tr. 59:7-11.
The Letter, thus, contradicts the premises on which this Court’s decision was based in two ways. First, the Letter requires Chicago to take affirmative action by mandating that the City affirmatively “communicate” with its employees that they are free to enforce federal immigration law on the City’s time and dime, by sharing immigration status information with federal authorities. This revelation that the Department construes Section 1373 to place affirmative demands on Chicago is not only at odds with the Attorney General’s representations to this Court and the bases for the Court’s decision, see PI Op. 35, it also makes plain why Section 1373 violates the Constitution. As the Supreme Court emphasized in Printz, an instruction to take affirmative action is no less commandeering because it requires “discrete, ministerial tasks.” 521 U.S. at 929. Even activities that are limited in scope place local governments “in the position of taking the blame for” a federal policy and thereby reduce the accountability of the federal government—a key justification for the anti-commandeering rule. Id. at 929. The Letter goes well beyond challenging any restriction
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Chicago may have placed on its employees sharing information covered by Section 1373, to demand that City use its own voice to endorse employees’ use of City time and resources to enforce federal immigration law.
Second, the Letter makes plain that the Department will seek to use the Section 1373 condition far more expansively than previously disclosed, to require not only cooperation in the sharing of immigration status information, but also information concerning general custody status and release dates (and presumably other information unrelated to immigration status). On this apparent reading, Section 1373 would not merely prevent local governments from controlling their own employees as to one particular activity (namely, sharing immigration status information), but would instead tie local governments’ hands while their employees’ time and energy is taken up by all manner of requests made by federal immigration officials. Such a strategy for inducing local officers to enforce federal law against the wishes of the City violates anti-commandeering principles. See County of Santa Cruz v. Gonzales, 2008 WL 3892019, at *3 (N.D. Cal. 2008) (unlawful commandeering where federal government “deliberately seek[s] to frustrate the state’s ability” to implement its own policy and the “effect of [that] concerted effort … would be to require state officials to enforce [federal law]”); see also Conant v. Walters, 309 F.3d 629, 645-646 (9th Cir. 2002) (Kozinski, J., concurring) (commandeering where the federal government “deliberately undermines” State policy in “a backdoor attempt to ‘control or influence the manner in which the States regulate private parties’” (quoting Reno v. Condon, 528 U.S. 141, 150 (2000))). And by expansively restricting the City’s authority to control its own employees, it strikes at the heart of the City’s sovereignty. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.”); Romero v. United States, 883 F. Supp. 1076, 1087 (W.D. La. 1994) (“[T]he ability to control its law enforcement officers, methods of law enforcement and law enforcement funding priorities are
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necessary elements of any sovereign’s ability to maintain public order.”); see also Oklahoma v. U.S. Civil Serv. Comm’n, 153 F.2d 280, 282 (10th Cir. 1946) (“It is the prerogative of a state to create and maintain officers of government according to its own choice, free from interference by the United States.”).
Reconsideration may be “appropriate … in those rare instances in which … new evidence of which the parties could not have been aware comes to light after submission of the matter to the court.” Bodenstab v. J.R. Blank & Assocs., Inc., No. 88 Civ. 6125, 1991 WL 33647, at *1 (N.D. Ill. Mar. 8, 1991) (granting reconsideration); see also, e.g., Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269–70 (7th Cir. 1996) (motion for reconsideration appropriate to consider “newly discovered evidence”). This is one of those instances. This Court should grant partial reconsideration of its decision on the preliminary injunction motion as to the Section 1373 condition in light of the Letter, and should hold, on reconsideration, that the Attorney General has strayed too far into the domain of state and local governments.2

October 13, 2017
JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org

2 For the avoidance of doubt, Chicago does not waive any additional arguments challenging the Letter’s legal premises and conclusions, including that the Department’s expansive new legal interpretation of Section 1373 is wrong, and that the Department’s attempt to enforce that interpretation is ultra vires and unlawful.
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DEBO P. ADEGBILE (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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CERTIFICATE OF SERVICE On the 13th day of October, 2017, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL

 
 Case: 17-2991 Document: 8-1

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IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CITY OF CHICAGO, Plaintiff-Appellee, v.
JEFFERSON B. SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES, Defendant-Appellant.

No. 17-2991

DEFENDANT-APPELLANT’S MOTION FOR PARTIAL STAY OF PRELIMINARY INJUNCTION PENDING APPEAL

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INTRODUCTION Defendant-appellant respectfully asks this Court to stay, pending appeal, the preliminary injunction issued in this case on September 15, 2017, insofar as it applies to entities other than the City of Chicago. The government sought a stay in district court on September 26, 2017. The district court denied the motion on October 13, 2017. Stay Op., Dkt. 98 (Attachment 1). In a case involving a single plaintiff—the City of Chicago—the district court issued a nationwide injunction affecting the grant applications of hundreds of other jurisdictions. This request for a partial stay does not ask the Court to consider the the district court’s ruling on the merits of the underlying dispute. It asks only that the Court apply settled principles of standing and equity and limit the application of the injunction to the plaintiff. Each year the Department of Justice (“DOJ”) makes grants to states and localities to provide additional funding for law enforcement purposes through the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). The district court held that two of the conditions on grants for the coming year are not authorized by the statute establishing the Byrne JAG Program. The first condition is that the grantee notify the Department of Homeland Security (“DHS”) of the scheduled release date of an incarcerated alien after receiving a formal request for notification from DHS. The second condition is that the grantee allow federal agents to meet with an incarcerated alien in order to inquire about the alien’s right to remain in the United

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States. The district court preliminarily enjoined the application of these two conditions to the City of Chicago. It then went further and made the injunction “nationwide in scope.” Merits Op., Dkt. 78, at 41 (Attachment 2).
The district court did not suggest that extending its injunction to other entities was necessary to avoid injury to Chicago, and Chicago “lack[s] standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties,” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997). It is likewise axiomatic “that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quotation marks omitted).
A partial stay will cause no injury to Chicago and will avoid intrusion into the operation of a program under which DOJ had planned to award law enforcement grants in the immediate future. The injunction precludes DOJ from including conditions that ensure a basic level of cooperation between governments in their respective law enforcement efforts. If DOJ issues awards while the injunction is in effect, its ability to include the conditions in this grant year will, at a minimum, be seriously hampered. Alternatively, delaying issuance of awards for an extended period will operate to the detriment of applicants across the country. The district court erred in forcing the Department to choose between these options, and we respectfully ask for a partial stay to correct that error.

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STATEMENT A. Grants Under the Byrne JAG Program 1. Congress created the Byrne JAG Program in 2006 to provide additional funding to state and local law enforcement agencies. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) (“DOJ Reauthorization Act”). The statute provides that “[f]rom amounts made available to carry out” the program, “the Attorney General may,” in accordance with a statutory formula, “make grants to States and units of local government” for certain criminal justice purposes. 34 U.S.C. § 10152(a)(1). The grant funds are divided among grantees based on a statutory formula, largely premised on population and crime statistics. Id. § 10156. States and localities that seek funding under the program must submit an application to the Attorney General, “in such form as the Attorney General may require.” Id. § 10153(A). Among other things, applicants must certify that they “will comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(A)(5)(D). Congress created the Byrne JAG Program within the Bureau of Justice Assistance, which reports to the Assistant Attorney General for the Office of Justice Programs (“OJP”). See 34 U.S.C. §§ 10101-02, 10141, 10151-58. In the same bill that created the program, Congress amended the statute that enumerates the powers of the Assistant Attorney General for OJP. The statute had previously authorized the Assistant Attorney General for OJP to “exercise such other powers and functions as
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may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” Id. § 10102(a)(6). In the amendment, Congress specified that those powers “includ[e] placing special conditions on all grants, and determining priority purposes for formula grants.” DOJ Reauthorization Act, Pub. L. No. 109-162, § 1152(b), 119 Stat. 2960, 3113; 34 U.S.C. § 10102(a)(6).
In accordance with that authority, Byrne JAG awards have historically contained various discretionary conditions that are not compelled by any federal statute, but promote DOJ’s law enforcement and public safety goals. DOJ has, for example, prohibited the use of award funds to purchase certain types of equipment and weapons, imposed training requirements, and required compliance with certain guidelines and recommendations that promote information sharing. See Hanson Decl., Dkt. 32-1, Ex. C, ¶¶ 26, 32, 49 (Attachment 3).
When OJP approves a Byrne JAG grant application, it sends a grant award document to the applicant, which enumerates, among other things, the “special conditions” applicable to the award. See Hanson Decl., Dkt. 32-1, Exs. A-C; OJP Grant Process Overview, available at https://ojp.gov/funding/Apply/GrantProcess.htm. Applicants then typically have 45 calendar days to review the special conditions and accept the award documents. See OJP Grant Process Overview.
2. The Office of Justice Programs has received nearly 1,000 applications from state and local jurisdictions seeking fiscal year 2017 Byrne JAG Program funds. Hanson Second Decl., Dkt. 82 ¶ 4 (Attachment 4). Prior to the entry of the nationwide
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preliminary injunction, OJP had aimed to issue fiscal year 2017 Byrne JAG Program awards by September 30, 2017, which is the end of the relevant fiscal year. Id. ¶¶ 7-8. OJP had issued two award documents prior to the entry of the preliminary injunction, but all other applications remain pending. Id. ¶ 5.
B. District Court Proceedings 1. On August 8, 2017, the City of Chicago filed this lawsuit to challenge three conditions that the Office of Justice Programs intended to place in Chicago’s Byrne JAG Program award documents for fiscal year 2017. See Compl., Dkt. 1. The first condition, which was previously accepted by Chicago in fiscal year 2016, requires grant recipients to certify compliance with 8 U.S.C. § 1373. See Hanson Decl., Dkt. 32-1, Ex. C, ¶ 52. Section 1373 states, in part, that “[n]otwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [Immigration and Customs Enforcement] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). The other two conditions were announced this year when OJP solicited applications for the fiscal year 2017 grant program. See Byrne JAG Program FY 2017 Local Solicitation, Dkt. 26-11. OJP later issued award documents to the County of Greenville, South Carolina and the City of Binghamton, New York on August 23, 2017, which included the precise text of the two conditions. See Hanson Decl., Dkt. 32-1,
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Exs. A-B. The first condition, which the district court referred to as the “notice” condition, requires that, with respect to any “program or activity” funded by the grant, the grantee must have a policy designed to ensure that, when DHS provides a formal written request for advance notice of the scheduled release date and time for a particular alien at a particular facility, the facility will “as early as practicable” provide the notice to DHS. Hanson Decl., Dkt. 32-1, Ex. A, ¶ 56.1.B.1 The second condition, which the district court referred to as the “access” condition, requires that, with respect to any “program or activity” funded by the grant, the grantee must have a policy designed to ensure that federal agents are “given access” to correctional facilities for the purpose of meeting with aliens and to “inquire as to such individuals’ right to be or remain in the United States.” Hansen Decl., Dkt. 32-1, Ex. A, ¶ 56.1.A.
Chicago claimed that all three conditions were unlawful and sought a preliminary injunction against their imposition nationwide. Chicago alleged that complying with the conditions would destroy the City’s goodwill with the immigrant community. See Compl., Dkt. 1, ¶ 70; Prelim. Inj. Mot., Dkt. 21, ¶ 3; Mem. in Support of Prelim. Inj. Mot., Dkt. 23, at 7-9, 21-24. Chicago did not claim that it is harmed by application of the conditions to other grant applicants. Nevertheless, the City sought a nationwide injunction against imposition of the conditions on all grant applicants. See Reply in Support of Prelim. Inj. Mot., Dkt. 69, at 15.

1 The term “program or activity” has the same meaning as that phrase under 42 U.S.C. § 2000d-4a. See Hanson Decl., Dkt. 32-1, Ex. A, ¶ 53.5.A(3).
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2. The district court concluded that Chicago was likely to succeed on the merits of its challenges to the notice and access conditions because, in the district court’s view, the statute establishing the Byrne JAG Program does not provide authority for those conditions. Merits Op., Dkt. 78, at 13. The court recognized that Congress has explicitly authorized the Assistant Attorney General authority to “plac[e] special conditions on all grants.” 34 U.S.C. § 10102(a)(6); Merits Op., Dkt. 78, at 13-19. The court believed, however, that the provision did not apply to the Byrne JAG Program, Merits Op., Dkt. 78, at 14, and that it would not in any event provide authority to impose conditions beyond the authority elsewhere vested in the Attorney General, id. at 18.
The district court accepted Chicago’s claim that Chicago would suffer irreparable harm if it accepted grants containing the notice and access conditions. Merits Op., Dkt. 78, at 36-37. The court found that the balance of the equities and the public interest favored neither party because both parties “have strong public policy arguments.” Id. at 40.
The court granted Chicago a “preliminary injunction against the Attorney General’s imposition of the notice and access conditions on the Byrne JAG grant.” Merits Op., Dkt. 78, at 40-41. As relevant here, the court then declared that “[t]his injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to

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Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Id. at 41.
The district court rejected Chicago’s claim regarding the condition requiring compliance with 8 U.S.C. § 1373. The court found that the condition was constitutional and was authorized by the statutory requirement that Byrne JAG Program grant applicants certify that they “will comply with all provisions of this part and all other applicable Federal laws,” 34 U.S.C. § 10153(A)(5)(D). Merits Op., Dkt. 78, at 20-35.
3. On September 26, 2017, the government filed a motion in the district court seeking a stay pending appeal of the preliminary injunction as it applies to grant applicants other than Chicago. On October 13, the district court denied the motion. The court stated that it had broad remedial authority to address a constitutional violation, and that the legal issues would not differ from jurisdiction to jurisdiction. Stay Op., Dkt. 98, at 4-6.
Turning to equitable considerations, the court declared that its injunction was preserving the status quo, and expressed the view that “judicial economy counsels against” requiring other jurisdictions who wished to challenge the rulings “to file their own lawsuits,” particularly because some of them had filed amicus briefs. Stay Op., Dkt. 98, at 11. The court declared that if the Attorney General wishes to impose the condition on other jurisdictions that are not parties to this case, “he must await a decision that upholds his authority to do so.” Id. at 12.

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ARGUMENT In determining whether to issue a stay pending appeal, this Court considers “the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). All factors support issuance of a partial stay of the injunction insofar as it applies to entities other than the City of Chicago. As for the merits, the district court assumed that it could dictate the terms of grants to states and localities that had not claimed irreparable harm or sought an injunction. That assumption was legally incorrect. First, Chicago lacks standing to assert injuries of other entities. Second, injunctive relief must be limited to redressing the plaintiff’s own cognizable injuries. The City did not argue, and the district court did not find, that applying the injunction to jurisdictions across the country was necessary to avoid irreparable harm to Chicago. The balance of harms and the public interest likewise strongly favor the entry of a partial stay. Chicago will suffer no harm at all by the issuance of a stay. But absent a stay, the Department of Justice will be faced with the choice of delaying awards, to the detriment of states and localities across the country, or else forgoing grant conditions intended to guarantee that the incarceration of aliens by states and localities does not impede the federal government’s efforts to enforce the immigration laws.

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I. Principles of Article III Standing and Limitations on a Court’s Equitable Authority Preclude Extension of the Injunction to Entities Other than Chicago. A. To establish standing, a plaintiff “must allege personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quotation marks omitted). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted). It is fundamental that “plaintiffs lack standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997). See also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”). As this Court has emphasized, “[t]he general rule is that a plaintiff has standing to sue only for injuries to his own interests that can be remedied by a court order.” Laskowski v. Spellings, 546 F.3d 822, 825 (7th Cir. 2008).
Applying this principle in McKenzie, this Court reversed an injunction that precluded the City of Chicago from operating a demolition program with respect to entities other than the plaintiffs. This Court noted the district court’s conclusion “that it was appropriate to enjoin the entire program, despite the lack of class certification, in order to prevent the City from violating the Constitution.” McKenzie, 118 F.3d at 555.
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As this Court explained, the district court’s statement “assume[d] an affirmative answer to the question at issue: whether a court may grant relief to non-parties. The right answer is no.” Id.
A corollary of that principle is that where no class has been certified, no justiciable controversy exists when the injury to the actual plaintiffs has been remedied. As this Court explained in McKenzie, where “a class has not been certified, the only interests at stake are those of the named plaintiffs.” 118 F.3d at 555 (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n. 1 (1976)). Thus, in Alvarez v. Smith, 558 U.S. 87, 92 (2009), plaintiffs lacked standing to seek declaratory and injunctive relief against the State’s practice of keeping property in custody without a prompt post-seizure hearing because the plaintiffs had already received the seized property or forfeited their claims to it. The Supreme Court explained that since class certification had been denied, the “only disputes relevant here are those between these six plaintiffs and the State’s Attorney . . . and those disputes are now over.” Id. at 93; see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (the plaintiffs “d[id] not represent a class, so they could not seek to enjoin [an agency order] on the ground that it might cause harm to other parties”).
The same principles inform the Supreme Court’s repeated admonition that the standing requirements of Article III preclude a court from granting relief that is not directed to remedying the injury asserted by the plaintiff. Thus, for example, in Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court held that the plaintiffs
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lacked standing to challenge Forest Service regulations after the parties had resolved the controversy regarding the application of the regulations to the project that had caused the plaintiffs’ injury. Noting that the plaintiffs’ “injury in fact with regard to that project ha[d] been remedied,” id. at 494, the Court held that to allow the plaintiffs to challenge the regulations “apart from any concrete application that threatens imminent harm to [their] interests” would “fly in the face of Article III’s injury-in-fact requirement.” Id. See also Scherr v. Marriott Int’l, 703 F.3d 1069 (7th Cir. 2013) (plaintiff’s standing to challenge safety conditions at one hotel did not provide standing to sue with respect to the same conditions at other hotels in the chain).
These cases make clear that Chicago does not have standing to seek an injunction broader than necessary to remedy its own asserted injury. Chicago properly does not claim that an injunction that extends to all grant applicants is necessary to remedy the City’s claimed harm, which is based entirely on the imposition of the notice and access conditions on Chicago itself. Having granted relief to Chicago, the district court had no authority to extend its ruling to jurisdictions across the country.
In its order denying a partial stay pending appeal, the district court declared that, having found a “constitutional violation,” Stay Op., Dkt. 98, at 4, it had discretion to correct that violation with respect to cities across the country. As an initial matter, the “constitutional violation” found by the court is the purported lack of authority to include the two grant conditions. Although the district court described this in passing as a “separation of powers” violation, Merits Op., Dkt. 78, at 19, that characterization
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would transform every case about agency authority into constitutional litigation; in all such cases, the asserted lack of statutory authority would be deemed a violation of the separation of powers. The district court misperceived the distinctions between a statutory dispute, such as that involved with regard to the two conditions, and cases involving structural limitations on the three branches of government.
In any event, McKenzie makes clear that rules of standing and equity are not suspended even when a court finds a constitutional violation. Cases cited in the order denying a partial stay did not address the relevant issues of standing and limitations on equitable authority. For example, the court cited Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997), a habeas case about the proper remedy for discriminatory jury selection based on gender, for the proposition that “[o]nce a constitutional violation has been shown, ‘the nature of the remedy must be determined by the nature and the scope of the constitutional violation.’” Stay Op., Dkt. 98, at 4; see also Zamecnik v. Indian Prairie Sch. Dist. # 204, 636 F.3d 874, 879 (7th Cir. 2011) (finding case was not moot because injunction extended to nonparties and noting that Federal Rules of Civil Procedure authorize such relief in appropriate cases). In Decker v. O’Donnell, 661 F.2d 598, 617-18 (7th Cir. 1980), also relied on by the district court, this Court rejected the argument that a nationwide injunction was inappropriate “because factfinding focused on Milwaukee County.” See also United States v. Capitol Serv., Inc., 756 F.2d 502, 507 (7th Cir. 1985) (discussing “[g]eographical limitations regarding the issues at trial”). And this Court’s 1971 decision in Sprogis v. United Air Lines, Inc., 444
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F.2d 1194, 1201-02 (7th Cir. 1971), discussed a “specialized rule” in Title VII cases whose “continued validity” has been called into question in light of subsequent Supreme Court case law. Peritz v. Liberty Loan Corp., 523 F.2d 349, 353 n.3 (7th Cir. 1975).
B. Even apart from the requirements of Article III, the district court’s injunction runs afoul of fundamental limitations on a court’s exercise of its equitable powers. Equitable principles require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); see United States Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (granting stay of Armed-Forces-wide injunction except as to individual plaintiff).
Applying this principle, the Fourth Circuit in Virginia Society for Human Life, Inc. v. Federal Election Commission, 263 F.3d 379 (4th Cir. 2001), vacated an injunction that precluded the Federal Election Commission from enforcing, against any entity, a regulation found to have violated the First Amendment. The court explained that an injunction covering the plaintiff “alone adequately protects it from the feared prosecution,” and that “[p]reventing the FEC from enforcing [the regulation] against other parties in other circuits does not provide any additional relief to [the plaintiff].” Id. at 393. Recognizing the same restraint on the exercise of equitable powers, in Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011), although the Ninth Circuit agreed with the district court that a Department of Health and Human Services
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regulation was facially invalid, the court vacated an injunction insofar as it barred the Department of Health and Human Services from enforcing the regulation against entities other than the plaintiff. See id. at 664 (“[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification”) (quoting Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996)). These principles apply with even greater force to a preliminary injunction, an equitable tool designed merely to “preserve the relative positions of the parties until a trial on the merits can be held.” University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added).
The portion of the district court’s injunction that applies to jurisdictions other than Chicago plainly exceeds the court’s equitable authority. Chicago is the only grant applicant in this lawsuit, and an injunction limited to the City provides it with full relief.
C. The district court misperceived its role in expanding the scope of its injunction on the theory that there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Merits Op., Dkt. 78, at 41; see also Stay Op., Dkt. 98, at 4-5. The district court’s finding that Chicago was likely to succeed on its argument that the imposition of the conditions was facially invalid does not entitle Chicago to a nationwide injunction. The district court’s conclusion conflated the scope of Chicago’s legal argument with the scope of relief necessary to remedy Chicago’s alleged injury. See Los Angeles Haven Hospice, 638 F.3d at 665 (reversing nationwide injunction despite upholding district court’s conclusion that regulation was facially
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invalid). A district court has no general authority to go beyond the relief necessary to remedy a plaintiff’s injury and also purport to settle the law for the entire nation. Permitting a court to do so “would ‘substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.’” Virginia Soc’y for Human Life, 263 F.3d at 393 (quoting United States v. Mendoza, 464 U.S. 154, 160 (1984)). See also Los Angeles Haven Hospice, 638 F.3d at 664 (“nationwide injunctions ‘have a detrimental effect by foreclosing adjudication by a number of different courts and judges’”) (quoting Califano, 442 U.S. at 702); id. (“[A]llowing only one final adjudication deprives the Supreme Court of the benefit it receives from permitting multiple courts of appeals to explore a difficult question before it grants certiorari”) (citing Mendoza, 464 U.S. at 160).
The district court’s error is underscored by the asymmetry inherent in its view of its equitable powers. A denial of an injunction in this case would not foreclose any other grant applicant from bringing suit on the same legal grounds urged here by Chicago. Nevertheless, the court deemed it equitable to foreclose the United States from enforcing the grant conditions regardless of whether it would be able to prevail in other courts. In other words, insofar as the City prevails, the district court issues the relief that might have been appropriate if it had certified a class of all grant applicants.

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But insofar as the federal government prevails, it gains none of the benefits of prevailing in a class action.2
In extending its injunction beyond Chicago, the district court relied on the scope of the injunction approved in International Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), cert. granted, 137 S. Ct. 2080, 2086 (2017). (That decision has since been vacated as moot by the Supreme Court. See Trump v. International Refugee Assistance Project, No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017).) The Fourth Circuit’s decision cannot be squared with this Court’s precedent or, indeed, the precedent of the Fourth Circuit. And the Fourth Circuit’s decision is inapposite even on its own terms. The Fourth Circuit gave three reasons for the nationwide injunction there, and none of them apply here. First, the Fourth Circuit found it significant that the “[p]laintiffs are dispersed throughout the United States,” 857 F.3d at 605, which is of course not true for the City of Chicago. Second, the Fourth Circuit believed that “nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that the immigration laws of the United States should be enforced vigorously and uniformly.” Id. (quotation marks omitted). This case does not involve the application of immigration law to foreign nationals. Third, the Fourth Circuit believed that limiting

2 In response to the government’s motion for a stay in district court, the U.S. Conference of Mayors moved to intervene in this litigation. Dkt. 91. The Conference of Mayors does not purport to have authority to file suit on behalf of any city. And, if the federal government prevails in this lawsuit, it may be assumed that no municipality other than Chicago will consider itself bound by the judgment.
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the injunction to the plaintiffs would not cure their asserted injury under the Establishment Clause because enforcement against others would “reinforce the message that Plaintiffs are outsiders, not full members of the political community.” Id. (quotation marks omitted). The Establishment Clause is not implicated here; nor does Chicago’s asserted injury stem from any message resulting from application of the grant conditions to other jurisdictions.
The district court’s reliance on the Supreme Court’s grant of a partial stay of the injunction in International Refugee Assistance Project was equally misplaced. See Stay Op., Dkt. 98, at 7-9 (citing Trump v. Internaional Refugee Assistance Project, 137 S. Ct. 2080 (2017)). There, the dissenting Justices would have reached the issues presented here and sided with the government’s position, id. at 2090 (Thomas, J., dissenting), but the majority declined to discuss the issues at all.
In sum, the settled Article III and equitable limits on the scope of injunctions apply with full force here. II. The Balance of Harms and the Public Interest Further Demonstrate
That a Partial Stay Is Warranted. Whereas a partial stay will result in no injury at all to Chicago, for the reasons already discussed, the stay is necessary to avoid interference with the operation of a nationwide grant program at a crucial point in the grant cycle. The Office of Justice Programs has received nearly 1,000 applications from state and local jurisdictions for more than $250 million in available FY 2017 Byrne JAG Program funds. Hanson

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Second Decl., Dkt. 82 ¶ 4. Prior to the entry of the nationwide preliminary injunction, OJP had aimed to issue fiscal year 2017 Byrne JAG Program awards by September 30, 2017. Id. ¶¶ 7-8. In light of the injunction, however, DOJ cannot issue the grants with two conditions designed to promote a basic level of cooperation between governments in fulfilling their respective law enforcement responsibilities, a cooperation very much in the public interest.
If the federal government issues the grants subject to the terms of the injunction, it may well lose the ability to include the conditions this year even if this Court later holds the injunction to be improper. States and localities can spend the funds as soon as they are distributed, and attempts to include the conditions at a later date will face many difficulties. Although the Department could, in theory, delay issuance of grants, a lengthy delay “would hinder the reasonably timely and reliable flow of funding” to support law-enforcement activity around the country, Hanson Second Decl., Dkt. 82 ¶ 10, impose particular burdens for localities with relatively small budgets, id. ¶ 11, and disrupt state grant-making processes under which states issue sub-awards of Byrne JAG Program funds, id. ¶ 12. In denying a partial stay pending appeal, the district court stated that it was “sympathetic to the Attorney General’s quandary,” but concluded that “[b]ecause the Attorney General is not able to meet its threshold burden of showing some likelihood of success on its motion to stay nationwide application of the preliminary injunction, no further analysis is necessary.” Stay Op., Dkt. 98, at 16-17.

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For the reasons discussed above, the court’s assessment of the strength of the
government’s arguments is quite wrong.
In sum, a stay will avoid irreparable harm to the federal government and will
cause no injury to Chicago.
CONCLUSION
For the foregoing reasons, the preliminary injunction should be stayed insofar
as it applies beyond plaintiff, the City of Chicago.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
MARK B. STERN
s/ Daniel Tenny DANIEL TENNY KATHERINE TWOMEY ALLEN (202) 514-1838
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7215 Washington, DC 20530
OCTOBER 2017

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CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 5,087 words. This motion was prepared using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced typeface.
s/ Daniel Tenny Daniel Tenny

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CERTIFICATE OF SERVICE I hereby certify that on October 13, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.

s/ Daniel Tenny Daniel Tenny

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ATTACHMENT 1 ORDER DENYING STAY

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,

Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,

Case No. 17 C 5720 Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER

The Attorney General moves to stay the nationwide

application of this Court’s preliminary injunction against

imposition of certain conditions on the 2017 Byrne JAG grant

pending resolution of the Attorney General’s appeal to the

Seventh Circuit Court of Appeals. For the reasons stated

herein, Defendant’s Motion to Stay Nationwide Application of

Preliminary Injunction [ECF No. 80] is denied.

I. BACKGROUND

The Court assumes familiarity with the underlying facts of

this case as recited in its opinion granting in part the City of

Chicago’s motion for a preliminary injunction. See, generally,

City of Chicago v. Sessions, No. 17 C 5720, 2017 U.S. Dist.

LEXIS 149847 (N.D. Ill. Sep. 15, 2017). In support of the

instant motion, the Attorney General has pointed to additional

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facts that merit discussion here. The Attorney General’s office has received nearly a thousand applications for Byrne JAG funding for FY 2017, and nearly all those applications await award notifications from the Department of Justice (the “Department”). (See, ECF No. 82, Second Decl. of Alan R. Hanson, ¶ 4.) In prior years, the majority of Byrne JAG awards were already issued by this time of the year. (Id. ¶ 9.) The Attorney General argues that this Court’s nationwide preliminary injunction prevents the Department from issuing the Byrne JAG award notifications because, even if the appeal is successful, the Attorney General will be unable to add the notice and access conditions after the award notifications issue. The Attorney General urges that a significant delay in the grant-making process past September of this year raises the prospect of imposing heavy burdens on localities with relatively small budgets (id. ¶ 11), disrupting state grant-making processes under which states issue sub-awards of Byrne JAG funds (id. ¶ 12), and undermining recovery efforts in jurisdictions that have recently suffered natural disasters (id. ¶ 13). To avoid this delay and the attendant burdens, the Attorney General requests a stay of the preliminary injunction.

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II. LEGAL STANDARD The analysis for “granting a stay pending appeal mirrors that for granting a preliminary injunction.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). In determining whether to grant a stay, the court should consider “the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other.” Ibid. Whether the movant can demonstrate the first two factors is a threshold issue. See, In re Forty-Eight Insulations, 115 F.3d 1294, 1300 (7th Cir. 1997). “If the movant can make these threshold showings, the court then moves on to balance the relative harms considering all four factors using a ‘sliding scale’ approach.” Id. at 1300-01. A stay pending appeal is intended “to minimize the costs of error” and “to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits.” In re A & F Enters., 742 F.3d at 766. As the Supreme Court recently stated, “[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l

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Refugee Assistance Project (“IRAP”), 137 S.Ct. 2080, 2087 (2017) (citations omitted).
III. ANALYSIS The Attorney General argues that the City of Chicago (the “City”) lacks Article III standing for any remedy that goes beyond its alleged injury-in-fact. (The Court notes that this argument may be mooted by the U.S. Conference of Mayors’ pending Motion to Intervene, but in this Opinion does not consider the effect of such an intervention.) There is no dispute that the City has standing vis-à-vis the notice and access conditions. Nonetheless, the Attorney General contends that the City’s standing is cut off at its jurisdictional boundaries, preventing the Court from fashioning a remedy any broader in scope than that required to redress the City’s injury. The Court disagrees. Once a constitutional violation has been shown, “the nature of the remedy must be determined by the nature and the scope of the constitutional violation.” Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997); see also, Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (“The nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation.”) (quotation omitted). The City has demonstrated a likely constitutional violation. It is the “nature and scope of the constitutional violation” that defines the remedy for this
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violation, not the particular plaintiff. Ibid. Here, the

constitutional transgression is national in scope because the

notice and access conditions, shown to be likely

unconstitutional, were imposed nationwide. Thus, a preliminary

injunction may “bind” the “part[y]” before the Court, in this

case the Attorney General, to prevent the constitutional

violations at issue regardless of where they may occur. FED. R.

CIV. P. 65(d).

“[O]nce a constitutional violation is

demonstrated, the scope of a district court’s equitable powers

to remedy past wrongs is broad, for breadth and flexibility are

inherent in equitable remedies.” Preston v. Thompson, 589 F.2d

300, 303 (7th Cir. 1978) (quoting Swann v. Charlotte-Mecklenburg

Bd. of Educ., 402 U.S. 1, 15 (1971)). The Constitution vests a

district court with “the judicial Power of the United States.”

U.S. Const. art. III, § 1. This power is not limited to the

jurisdiction in which the district court sits: “[i]t is not

beyond the power of a court, in appropriate circumstances, to

issue a nationwide injunction.” Texas v. U.S., 809 F.3d 134,

188 (5th Cir. 2015), as revised (Nov. 25, 2015), aff’d by

equally divided court, 136 S.Ct. 2271 (2016).

The circumstances here are appropriate. Because the

Attorney General’s authority, or lack thereof, will not vary by

jurisdiction, the cases cited in support of a stay are

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inapposite. In Lewis v. Casey, 518 U.S. 343 (1996), the

evidence failed to show systemic violations necessary to justify

a state-wide injunction in Arizona’s prison libraries, as the

challenged conduct could have been present in some prisons but

not others. Id. at 359-60. This case, on the other hand,

implicates a facial challenge to a federal statute; the Attorney

General’s authority to impose Byrne JAG conditions on the City

will not differ from his authority to do so elsewhere. No

additional evidence is needed to justify the nationwide scope of

the injunction because the Attorney General’s authority does not

vary state by state like the conditions of access to legal

libraries may vary prison to prison. See, id. Town of Chester,

N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1648-49 (2017), is

also unavailing.

There, the Court analyzed whether an

intervenor as a matter of right has standing to claim a remedy

separate from that sought by the plaintiff. This Court has

found no case extending Town of Chester’s rationale to the

proposition advanced by the Attorney General - that, regardless

of the likely constitutional violation shown, a party with

standing is barred from injunctive relief broader than that

which directly impacts it.

Next, the Attorney General argues that equitable principles

require that the injunction be no more burdensome than necessary

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to resolve a plaintiff’s injury. While true that an injunction should be “no more burdensome than necessary to provide complete relief,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 778 (1994), a nationwide injunction is necessary to provide complete relief from the likely constitutional violation at issue here. See, McBride, 124 F.3d at 873; see also, Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963) (“The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated.”). As the City’s cited authority indicates, nationwide injunctions have been upheld numerous times where the remedy provided relief to non-parties as well as the plaintiff. See, e.g., Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980); Texas v. U.S., 809 F.3d at 187-88 n. 211 (upholding nationwide scope of preliminary injunction and collecting cases).
Most significantly, a recent Supreme Court decision validates the nationwide application of the preliminary injunction here. In International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017), vacated as moot, 583 U.S. __ (2017), the Fourth Circuit upheld the nationwide scope of a preliminary injunction enjoining, inter alia, portions of the President’s executive order barring certain foreign nationals
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from entering the United States. The government appealed and, while the appeal was pending, moved for a stay of the injunction. See, Trump v. IRAP, 137 S.Ct. 2080, 2083 (2017). The Supreme Court granted in part and denied in part the motion to stay the nationwide injunction. Id. at 2089. Although the Supreme Court narrowed the categories of persons to whom the injunction applied, the nationwide application of the injunction was upheld “with respect to parties similarly situated to [the plaintiffs].” Id. at 2088. Consistent with the Supreme Court’s analysis, the scope of the nationwide preliminary injunction at issue here includes similarly situated states and local governments. In fact, the dissenting Justices made the exact argument the Attorney General advances here, specifically criticizing the majority for upholding the scope of the injunction for other similarly situated persons and ignoring that “a court’s role is to provide relief only to claimants.” Id. at 2090 (Thomas, J., dissenting) (quotations and alterations omitted) (“But the Court takes the additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad.”). The Attorney General’s argument to stay the injunction parallels that adopted by the dissent but clearly rejected by the majority of the Supreme

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Court. See, id. at 2088. Thus, the Court is duty-bound to reject it here as well.
Similarly, the Seventh Circuit has upheld a nationwide injunction where the evidence before the court primarily involved one jurisdiction. In Decker, the appellant argued that the district court erred by entering a nationwide injunction where the fact-finding had focused on Milwaukee County. See, Decker, 661 F.2d at 617-18. The court affirmed the nationwide scope of the preliminary injunction, reasoning that the court’s “analysis . . . relied primarily on the statute and regulation and ha[d] used the evidence on funding in Milwaukee County merely as illustration.” Id. at 618.
The Attorney General’s authority for cabining injunctive relief to only the plaintiff’s injury is distinguishable. In Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), the Supreme Court reviewed a permanent injunction based on a violation of the National Environmental Policy Act where a federal agency failed to complete an environmental impact statement prior to deregulating alfalfa. The Supreme Court overturned the injunction, emphasizing that the agency could lawfully approve a partial deregulation of alfalfa before completing the new environmental impact statement without harming the plaintiffs. Id. at 165-66. Because the district
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court had enjoined the agency from approving not just a complete but also a partial deregulation, the injunction was overbroad. Ibid. Monsanto does not apply here. In Monsanto, the injunction prevented the agency from using its lawful authority to impose a partial deregulation that had not been shown to harm the plaintiffs. See, ibid. Here, the Attorney General likely has no lawful authority to impose the notice and access conditions. An injunction is not overbroad where it merely inhibits the Attorney General from acting beyond his likely statutory authority. Madsen v. Women’s Health Center, 512 U.S. 753 (1994), is also inapplicable. Because the injunction there restricted the defendants’ First Amendment rights, Madsen applied a different standard. See, id. at 765. There, the Court assessed “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Ibid. No similar First Amendment concern is present here.
With respect to equitable considerations, the Attorney General argues that staying the nationwide sweep of the injunction would allow the Department to include the notice and access conditions in award notifications while a decision on the merits is reached, thus preventing burdens on localities that might attend a significant delay in Byrne JAG funding. The
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difficulty with this proposition is that, in essence, the proposed “fix” would allow the Attorney General to impose what this Court has ruled are likely unconstitutional conditions across a number of jurisdictions prior to a decision on the merits. This is not an equitable result, particularly where the Court’s preliminary injunction merely preserves the status quo to await a final decision. See, Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 65.20 (2017); see also, Am. Med. Ass’n v. Weinberger, 522 F.2d 921, 926 (7th Cir. 1975) (upholding preliminary injunction that preserved status quo for resolution on the merits).
Finally, the Attorney General argues that applicants who contest the conditions may file their own lawsuits while jurisdictions that do not contest the conditions may receive immediate funding by acceding to the notice and access conditions while the appeal is pending. Considering that thirty-seven cities and counties have signed on as amicus curiae in support of the City, judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question before this Court. (See, generally, ECF No. 51, Brief of Amici Curiae County of Santa Clara, 36 Additional Cities, Counties and Municipal Agencies, the U.S. Conference of Mayors, the National
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League of Cities, the National Association of Counties, the

International Municipal Lawyers Association, and the

International City/County Management Association (“Amicus Brief

of Counties, Cities, and Others”).)

Furthermore, all

jurisdictions remain free to adopt the substance of the notice

and access conditions if they wish to do so. The injunction

only prevents the Attorney General from imposing them as

conditions on the Byrne JAG funds. If, however, the Attorney

General wishes to reserve his right to tether the notice and

access conditions to eligibility for these funds, he must await

a decision that upholds his authority to do so.

Although not specifically raised by the Attorney General,

there are reasons to be cautious when imposing a nationwide

injunction. Recent legal scholarship has identified significant

concerns related to the use of nationwide injunctions at the

district court and circuit court levels. See, generally, Samuel

L. Bray, Multiple Chancellors: Reforming the National Injunction

(February 9, 2017) (forthcoming publication), available at SSRN:

https://ssrn.com/abstract=2864175; Michael T. Morley, De Facto

Class Actions? Plaintiff- and Defendant-Oriented Injunctions in

Voting Rights, Election Law, and Other Constitutional Cases, 39

Harv. J.L. & Pub. Pol’y 487 (2016); Maureen Carroll, Aggregation

for Me, but Not for Thee: The Rise of Common Claims in Non-

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Class Litigation, 36 Cardozo L. Rev. 2017 (2015). Nationwide injunctions may increase forum shopping, lead to conflicting injunctions, and stymie the development of the law within the Circuits prior to Supreme Court review. These concerns are not insignificant but fail to overcome the benefits of a nationwide injunction in this specific instance. First and foremost, there has been no evidence of forum shopping here and neither party has argued as such. Second, as explained above, judicial economy favors avoiding “a flood of duplicative litigation” from other Byrne JAG applicants who want the same protections as the City of Chicago. Nat’l Mining Ass’n v. United States Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). Certainly, it would at least include the thirty-seven cities and counties that filed briefs in support of the City of Chicago as amici. See, ECF No. 51, Amicus Brief of Counties, Cities, and Others; see also, A-1 Cigarette Vending, Inc. v. U.S., 49 Fed. Cl. 345, 358 (2001) (“It would be senseless to require the relitigation of the validity of a regulation in all federal district courts”).
Nevertheless, issuing a nationwide injunction should not be a default approach. It is an extraordinary remedy that should be limited by the nature of the constitutional violation and subject to prudent use by the courts. See, Califano v. Yamaski, 442 U.S. 682, 702 (1979) (noting that injunctive relief is
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limited to the “extent of the violation established”). In this case, the Court finds it an appropriate remedy based on the need for federal uniformity and the unfairness resulting from disparate applications.
The rule of law is undermined where a court holds that the Attorney General is likely engaging in legally unauthorized conduct, but nevertheless allows that conduct in other jurisdictions across the country. The Courts have a “wellrecognized interest in ensuring that federal courts interpret federal law in a uniform way.” Williams v. Taylor, 529 U.S. 362, 389–90 (2000). Further, the public interest and perception of the law supports “having congressional enactments properly interpreted and applied. . . . As it is principally the protection of the public interest with which [the court is] concerned, no artificial restrictions of the court’s power to grant equitable relief in the furtherance of that interest can be acknowledged.” Wirtz v. Baldor Elec. Co., 337 F.2d 518, 53435 (D.C. Cir. 1963) (internal quotations and citations omitted). All similarly-situated persons are entitled to similar outcomes under the law, and as a corollary, an injunction that results in unequal treatment of litigants appears arbitrary. See, id. at 534 (“[Where] a lower court . . . has spoken, that court would ordinarily give the same relief to any individual who comes to
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it with an essentially similar cause of action. . . . The rule of law requires no less.”); see also, Sandford v. R. L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978) (“[T]he settled rule is that whether plaintiff proceeds as an individual or on a class suit basis, the requested injunctive relief generally will benefit not only the claimant but all other persons subject to the practice or the rule under attack.”) (internal quotations and alterations omitted). An injunction more restricted in scope would leave the Attorney General free to continue enforcing the likely invalid conditions against all other Byrne JAG applicants. This state of affairs flies in the face of the rule of law and the role of the courts to ensure the rule of law is enforced.
This is especially true considering the judiciary has an important role to play in enforcing the separation of powers. See, NLRB v. Canning, 134 S.Ct. 2550, 2559-60 (2014) (“[T]he separation of powers . . . serve[s] to safeguard individual liberty, and . . . it is the duty of the judicial department — in a separation-of-powers case as in any other — to say what the law is.”) (internal quotations and citations omitted). “When the court believes the underlying right to be highly significant, it may write injunctive relief as broad as the right itself.” Zamecnik v. Indian Prairie Sch. Dist. # 204, 636
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F.3d 874, 879 (7th Cir. 2011) (Posner, J.) (quotations omitted). District courts are given broad authority to determine the appropriate scope of an injunction. See, United States v. Capitol Serv., Inc., 756 F.2d 502, 507 (7th Cir. 1985) (“Geographical limitations regarding the issues at trial do not alter the court’s broad remedial powers.”); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201-02 (7th Cir. 1971) (affirming the “district court’s power to consider extending relief beyond the named plaintiff” “where justice requires such action”). If this Court is incorrect, the appellate process is the vehicle to correct the error.
The Court is sympathetic to the Attorney General’s quandary and agrees that, ideally, a final decision on the merits would be reached before practical constraints force a surrender of his policy position (at least for FY 2017). However, this concern is better dealt with through expedited proceedings than a stay that would likely result in imposition of unconstitutional conditions on Byrne JAG applicants. The Court notes that the Attorney General opposed the City’s Motion for Expedited Briefing that would have resulted in an earlier decision on the City’s Motion for a Preliminary Injunction. (See, ECF No. 28, Def.’s Opp. to Pl.’s Mot. to Expedite Briefing Schedule.)

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Applicants for a stay have a threshold burden to demonstrate both a likelihood of success on the merits and that irreparable harm will result if the stay is denied. Matter of Forty-Eight Insulations, Inc., 115 F.3d at 1300–01. Where the applicant “does not make the requisite showings on either of [the threshold] factors, the court’s inquiry into the balance of harms is unnecessary, and the stay should be denied without further analysis.” Id. at 1301. Because the Attorney General is not able to meet its threshold burden of showing some likelihood of success on its motion to stay nationwide application of the preliminary injunction, no further analysis is necessary. See, ibid.
IV. CONCLUSION For the reasons stated herein, the Attorney General’s Motion to Stay Nationwide Application of Preliminary Injunction [ECF No. 80] is denied.

IT IS SO ORDERED.

Dated: October 13, 2017

Harry D. Leinenweber, Judge United States District Court
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ATTACHMENT 2 PRELIMINARY INJUNCTION ORDER

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,
Defendant.

Case No. 17 C 5720 Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER This case involves the intersection between federal immigration policies and local control over policing. Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, seeks to impose new conditions on an annual federal grant relied on by the City of Chicago for law enforcement initiatives. These conditions require additional cooperation with federal immigration officials and directly conflict with Chicago’s local policy, codified in its Welcoming City Ordinance, which restricts local officials’ participation in certain federal immigration efforts. Chicago claims its policies engender safer streets by fostering trust and cooperation between the immigrant community and local police. Chicago’s policies are at odds with the immigration enforcement

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priorities and view of public safety espoused by the Attorney General.
Against this backdrop, the City of Chicago claims that these new conditions are unlawful and unconstitutional, and implores this Court to grant a preliminary injunction enjoining their imposition. For the reasons described herein, the Court grants in part, and denies in part, the City of Chicago’s Motion for a Preliminary Injunction.
I. FACTUAL BACKGROUND A. The Edward Byrne Memorial
Justice Assistance Grant Program The federal grant at issue is awarded by the Edward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG grant”). See, 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). Named after a fallen New York City police officer, the Byrne JAG grant supports state and local law enforcement efforts by providing additional funds for personnel, equipment, training, and other criminal justice needs. See, 34 U.S.C. § 10152 (formerly 42 U.S.C. § 3751). The Byrne JAG grant is known as a formula grant, which means funds are awarded based on a statutorily defined formula. See, 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755). Each state’s allocation is keyed to its population and the amount of reported violent crimes. Ibid. The

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City of Chicago (the “City”) has received Byrne JAG funds since 2005, including $2.33 million last year on behalf of itself and neighboring political entities. (See, Decl. of Larry Sachs, ¶¶ 3, 11-12.) The City has used these funds to buy police vehicles and to support the efforts of non-profit organizations working in high crime communities. (See, id. ¶ 4.)
B. New Conditions on the Byrne JAG Grant In late July 2017, the Attorney General announced two new conditions on every grant provided by the Byrne JAG program. (See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The two new conditions require, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations, and, second, that local authorities provide immigration agents with access to City detention facilities and individuals detained therein. Additionally, a condition on Byrne JAG funds was added last year that requires the City to certify compliance with a federal statute, 8 U.S.C. § 1373, which prohibits local government and law enforcement officials from restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual. (See, FY 2016 Chicago/Cook County JAG Program Grant
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Award, dated Sept. 7, 2017, at 2-13, Ex. C to Decl. of Alan
Hanson (“Hanson Decl.”).) The condition to certify compliance
is also imposed on 2017 Byrne JAG funds. (See, Byrne JAG
Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The
exact text of the three conditions is as follows:
(1) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable -- provide the requested notice to DHS.
(2) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.
(3) The applicant local government must submit the required ‘Certification of Compliance with 8 U.S.C. 1373’ (executed by the chief legal officer of the local government).
(Byrne JAG Program Grant Award for County of Greenville, Special
Conditions (“Byrne Conditions”), ¶¶ 53, 55-56, Ex. A to Hanson
Decl.; see also Hanson Decl., ¶ 6.) These conditions will be

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referred to respectively as the notice condition, the access
condition, and the compliance condition. The City claims all
three conditions are unlawful and unconstitutional, even though
it acquiesced to the compliance condition when accepting the
2016 Byrne JAG funds.
The compliance condition requires the City to certify
compliance with Section 1373. (Byrne Conditions ¶ 53.) Section
1373 is titled “Communication between government agencies and
the Immigration and Naturalization Service” and provides as
follows, 8 U.S.C. § 1373:
(a) In General
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.
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(c) Obligation to Respond to Inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
C. The City’s Welcoming Ordinance Chicago’s Welcoming City Ordinance (the “Ordinance”) is a codified local policy that restricts the sharing of immigration status between residents and police officers. See, Chicago, Illinois, Municipal Code § 2-173-005 et seq. The explicit purpose of the Ordinance is to “clarify what specific conduct by City employees is prohibited because such conduct significantly harms the City’s relationship with immigrant communities.” Id. § 2-173-005. The Ordinance reflects the City’s belief that the “cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City” and that the “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all its residents.” Ibid. Since the mid-1980s, the City has had in place some permutation of this policy, typically in the form of executive orders that prohibited City agents and agencies from
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requesting or disseminating information about individuals’ citizenship. (See, Executive Order 85-1, 89-6, Exs. A-B to Pl.’s Br.) First codified in Chicago’s Municipal Code in 2006, the Ordinance was augmented in 2012 to refuse immigration agents access to City facilities and to deny immigration detainer requests unless certain criteria were met. See, Chicago, Illinois Municipal Code § 2-173-005. An immigration detainer request is a request from Immigration and Customs Enforcement (“ICE”), asking local law enforcement to detain a specific individual for up to 48 hours to permit federal assumption of custody.
The Ordinance prohibits any “agent or agency” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” Id. § 2-173-020. It goes on to forbid any agent or agency from “disclos[ing] information regarding the citizenship or immigration status of any person.” Id. § 2-173-030. The Ordinance specifically characterizes “[c]ivil immigration enforcement actions” as a “[f]ederal responsibility,” and provides as follows:

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a. Except for such reasonable time as is necessary to conduct the investigation specified in subsection (c) of this section, no agency or agent shall:
1. arrest, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation;
2. arrest, detain, or continue to detain a person based on an administrative warrant entered into the Federal Bureau of Investigation’s National Crime Information Center database, or successor or similar database maintained by the United States, when the administrative warrant is based solely on a violation of a civil immigration law; or
3. detain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.
b.
1. Unless an agency or agent is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
A. permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
B. permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or

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C. while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date.
2. An agency or agent is authorized to communicate with ICE in order to determine whether any matter involves enforcement based solely on a violation of a civil immigration law.
c. This section shall not apply when an investigation conducted by the agency or agent indicates that the subject of the investigation:
1. has an outstanding criminal warrant;
2. has been convicted of a felony in any court of competent jurisdiction;
3. is a defendant in a criminal case in any court of competent jurisdiction where a judgment has not been entered and a felony charge is pending; or
4. has been identified as a known gang member either in a law enforcement agency’s database or by his own admission.
Id. § 2-173-042. The Ordinance is thus irreconcilable with the
notice and access conditions the Attorney General has imposed on
the 2017 Byrne JAG grant.
After receiving notice of the Attorney General’s new
conditions on the Byrne JAG grant program, the City filed suit
alleging that the conditions were unconstitutional and unlawful.
Throughout this litigation, the City has strenuously argued for

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its prerogative to allocate scarce local police resources as it sees fit – that is, to areas other than civil immigration enforcement – and for the soundness of doing so based on the integral role undocumented immigrant communities play in reporting and solving crime. (See, Pl.’s Br. at 2-4.) Before the Court is the City’s Motion for a Preliminary Injunction, requesting the Court enjoin the Attorney General from imposing the three above-described conditions on FY 2017 Byrne JAG funds.
The Court grants the City a preliminary injunction against the imposition of the notice and access conditions on the Byrne JAG grant. The Court declines to grant the preliminary injunction with respect to the compliance condition.
II. ANALYSIS A. Legal Standard To warrant the entry of a preliminary injunction, the City “must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.” Higher Soc’y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Where the Government is the opposing party, the last two factors merge. Nken v. Holder,
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556 U.S. 418, 435 (2009). Further, under Seventh Circuit precedent, the Court must also “weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017).
B. Likelihood of Success on the Merits This case presents three questions: Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment? We take these questions in turn.
1. Executive Authority under the Byrne JAG Statute Whether the new conditions on the Byrne JAG grant are proper depends on whether Congress conferred authority on the Attorney General to impose them. Congress may permissibly delegate authority and discretion to the Executive Branch through statute. See, Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The contours of the Executive Branch’s authority are circumscribed by statute because the “power to act . . . [is] authoritatively prescribed by Congress.” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297-98 (2013). Accordingly, we must look to the statute to determine the
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authority of the Attorney General to impose conditions on the Byrne JAG grant. In determining the scope of a statute, we look first to its language. See, United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20 (1983) (internal quotations omitted). The language and design of the statute as a whole may guide the Court in determining the plain meaning of the text. Berkos, 543 F.3d at 396.
The Byrne JAG program was created in 2006 and is codified at 34 U.S.C. §§ 10151-10158 (formerly 42 U.S.C. §§ 3750-3757). These provisions are housed in Subchapter V of Chapter 101 entitled “Justice System Improvement.” Subchapter V enumerates the various “Bureau of Justice Assistance Grant Programs” in three parts: Part A covering the Byrne JAG program, Part B covering “Discretionary Grants,” and Part C discussing “Administrative Provisions.” The authority explicitly granted to the Attorney General within the Byrne JAG statute is limited. The Attorney General is authorized to: determine the “form” of the application, 34 U.S.C. § 10153(a); “reasonably require” “the applicant [to] maintain and report . . . data, records, and
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information (programmatic and financial),” 34 U.S.C. § 10152(a)(4); and “develop[] guidelines” for “a program assessment” “in coordination with the National Institute of Justice,” 34 U.S.C. § 10152.
In light of the limited express authority the statute confers on the Attorney General, the City argues that Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant. The fact that Congress did authorize the Attorney General to place substantive conditions on other grants, the City contends, indicates an express reservation of that authority. See, 34 U.S.C. § 10142 (formerly 42 U.S.C. § 3742). By failing to direct the Court to any textual authority within the Byrne JAG statute itself, the Attorney General appears to concede the point.
However, the Attorney General argues that Congress expressly authorized imposition of the challenged conditions through a provision of Subchapter I establishing the Office of Justice Programs, which provision allows the Assistant Attorney General to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6) (formerly 42 U.S.C. § 3712(a)(6)). The difficulty with the Attorney General’s reading of the statute is that this grant of authority to the Assistant Attorney General is located
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in an entirely different subchapter governing Office of Justice Programs, whereas Congress codified the later-in-time Byrne JAG program under the aegis of Bureau of Justice Assistant Grant Programs. The statute contains no textual reference that applies this section to the rest of the chapter or specifically to the Byrne JAG program. In fact, Chapter 101 comprises 38 subchapters implicating a broad swath of federal programs and subject matter, ranging from grants for residential substance abuse treatment, see, 34 U.S.C. §§ 10421-10426, to criminal child support enforcement, see, 34 U.S.C. §§ 10361-10367.
Even assuming that § 10102(a) applies to the Byrne JAG grant, reading the statute as the Attorney General advises results in multiple incongruities within the text.
First, it renders superfluous the explicit statutory authority Congress gave to the Director to impose conditions on other Bureau of Justice Assistance grants housed within the same subchapter as the Byrne JAG statute. Congress explicitly provides the Director of the Bureau of Justice Assistance with authority to “determine[]” “terms and conditions” for the discretionary grants itemized in Part B of the statute:
The Director shall have the following duties: [. . .]

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(2) Establishing programs in accordance with part B of subchapter V of this chapter and, following public announcement of such programs, awarding and allocating funds and technical assistance in accordance with the criteria of part B of subchapter V of this chapter, and on terms and conditions determined by the Director to be consistent with part B of subchapter V of this chapter.
34 U.S.C. § 10142 (emphases added). As noted earlier, the Byrne
JAG grant is a formula grant located in Part A of Subchapter V.
The most natural reading of the statute, then, is that Congress
endowed the Director with authority to impose conditions on the
discretionary grants under Part B, but specifically withheld
that authorization for the formula grant, the Byrne JAG grant,
in Part A. See, ibid. The Attorney General’s reading of the
statute therefore ignores the ostensibly clear decision by
Congress to withhold comparable authority in the Byrne JAG
provisions. See, N.L.R.B. v. SW General, Inc., 137 S.Ct. 929,
940 (2017) (noting the expressio unius canon’s application when
“circumstances support a sensible inference that the term left
out must have been meant to be excluded”) (quotations and
alterations omitted). Regardless, it would be quite odd for
Congress to give the Attorney General authority to impose
conditions on the discretionary grants if it had already
provided the Attorney General authority to impose conditions on
all grants through Section 10102(a)(6). See, 34 U.S.C. §
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10102(a)(6). This reading would render superfluous the explicit statutory grant of authority to impose conditions on the discretionary grants in Part B. See, Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 811 (7th Cir. 2016) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (quotations and citations omitted).
This conclusion is supported by the fact that Congress specifically conferred authority to impose conditions on other grants housed in the same chapter. Where Congress did so, it did so clearly. For example, Subchapter XIX of Chapter 101 provides federal funds for efforts designed to combat violence against women. See, 34 U.S.C. § 10446-10453 (formerly 42 U.S.C. §§ 3796gg-0 to 3796gg-11). There, Congress expressly authorized the Attorney General to impose conditions when administering the grant:
In disbursing grants under this subchapter, the Attorney General may impose reasonable conditions on grant awards to ensure that the States meet statutory, regulatory, and other program requirements. 34 U.S.C. § 10446(e)(3) (emphasis added). Further, Congress expressly limited its delegation of authority to apply only to funds awarded under that specific subchapter. Ibid. “Where

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Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello, 464 U.S. at 23. What is more, “[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005).
Second, even if there were a basis for importing § 10102(a) into the Byrne JAG statute, it is suspect to ground the Attorney General’s authority to impose the challenged conditions via the power Congress conferred on the Assistant Attorney General. See, 34 U.S.C. § 10102(a)(6); Whitman, 531 U.S. at 468 (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). Furthermore, § 10102(a)(6) provides that the Assistant Attorney General shall exercise “such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 34 U.S.C. § 10102(a)(6) (emphasis added). The language of the statute,
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including its use of the term “may,” implies that any authority of the Assistant Attorney General to place special conditions on grants must flow either from the statute itself or from a delegation of power independently possessed by the Attorney General. See, Jama, 543 U.S. at 346 (“The word ‘may’ customarily connotes discretion.”). Yet the Attorney General in this litigation has pointed to no provision other than § 10102(a)(6) to ground its purported authority to condition Byrne JAG grants.
The Attorney General’s reliance on 34 U.S.C. § 10102(a)(6) is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. See, Gonzales v. Oregon, 546 U.S. 243, 273 (2006) (statutes “should not be read as a series of unrelated and isolated provisions”). Viewed in its context, however, § 10102(a)(6) is better understood as allowing the Attorney General to delegate powers to the Assistant Attorney General to aid in administering the Office of Justice Programs – whereas the Byrne JAG grant is a Bureau of Justice Assistance Program that is both housed in a distinctly different subchapter of Chapter 101 and isolated from other discretionary grants within its own subchapter. Reading § 10102(a)(6) to authorize the Attorney General to impose substantive conditions on all grants under the entire chapter is
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discordant with the specific and clear grants of authority in other sections of the statute.
This conclusion rests on principles of statutory interpretation. It does not imply that Congress cannot impose the conditions at issue. See, Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.”). On the contrary, Congress may well have Spending Clause power to impose the conditions or delegate to the Executive Branch the power to impose them, including the notice and access condition, but it must exert that power through statute. The Executive Branch cannot impose the conditions without Congressional authority, and that authority has not been conferred through Section 10102.
The notice and access conditions therefore exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires. The City has shown a likelihood of success on the merits as to these conditions. We do not reach the question whether the notice and access conditions violate the Spending Clause because, regardless, Congress did not authorize the Attorney General to impose them.

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The Attorney General points to one other statutory
provision, 34 U.S.C. § 10153 (formerly 42 U.S.C. § 3752), for
the authority to impose the compliance condition specifically.
Section 10153(a) lays out the Byrne JAG application
requirements, which read in relevant part:
(A) In general To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
[. . .]
(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, if qualified under regulations promulgated by the Attorney General), that—
[. . .]
(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
34 U.S.C. § 10153(a) (emphases added). Specifically, the
Attorney General argues that § 10153(a)(5)(D) furnishes the
authority to require a Byrne JAG applicant’s compliance with
federal law, including Section 1373. See, ibid. Undeniably,
Section 1373 is a federal law that, by its terms, is applicable

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to the City. The City responds that “all other applicable Federal laws” merely refers to compliance with the narrow body of law governing federal grant-making. See, e.g., 42 U.S.C. § 2000d; 29 U.S.C. § 794(a); 42 U.S.C. § 6102. Both positions are plausible, but for the reasons discussed below, the Attorney General’s position is more consistent with the plain language of the statute.
We, as always, begin with the plain language of the statute. See, Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016). We “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello, 464 U.S. at 20.
The statutory language at issue here is “all other applicable Federal laws.” Black’s Law Dictionary defines “applicable” as “[c]apable of being applied; fit and right to be applied” or “affecting or relating to a particular person, group, or situation; having direct relevance.” Black’s Law Dictionary (10th ed. 2014). This definition embraces both parties’ interpretations. However, the prefatory term in
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§ 10153(a)(5)(D), “all other,” implies a broader meaning than that tolerated by the City’s interpretation. Furthermore, if Congress intended to have the applicant only certify compliance with a limited body of Federal grant-making law, it could have so stated. The City seeks to read into § 10153(a)(5)(D) references to specific federal statutes that are not there.
The City argues that the word “applicable” must have a narrowing effect. (Pl.’s Brief at 19.) However, it is equally reasonable to read “applicable” as referring to the noun, in other words, to refer to the federal laws applicable to the applicant – in this case, Chicago. 34 U.S.C. § 10153(a)(5)(D).
The Court will not stretch the natural meaning of the text, especially here where the City offers no case law or other authority to support its straitjacketed interpretation of “all other applicable Federal laws.” 34 U.S.C. § 10153; see also, Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”) (quotations omitted).
The Court found no directly analogous case, but when interpreting similar constructions, the Supreme Court has broadly interpreted the term “applicable laws.” See, e.g., Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922,
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930 (1990) (interpreting the statutory term “applicable laws” as “laws outside the Act”); see also, Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir. 1995) (noting that “all applicable laws” is “not reasonably or fairly susceptible to an interpretation that does not encompass compliance with state and federal tax laws”); United States Dep’t of Health & Human Servs. v. F.L.R.A., 844 F.2d 1087, 109495 (4th Cir. 1988) (finding statutory requirement that Executive Branch managers follow “applicable laws” to exclude Office of Management and Budget circulars but to encompass a broad panoply of statutory law); United States v. Odneal, 565 F.2d 598, 600 (9th Cir. 1977) (reference to “all applicable laws” relating to admiralty grants “very broad statutory authority”).
With no authority to support a more narrow reading of “applicable . . . laws” in a statutory context, and some authority (albeit in a different context) to support a broad reading of the phrase, combined with the plain meaning of the language, the Court finds that “all other applicable Federal laws” encompasses Section 1373 as applicable to the Byrne JAG applicant – in this case, the City of Chicago. Here, it is the City’s burden as the movant to show otherwise, and it fails to meet that burden on this record. See, Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“It frequently is observed that a
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preliminary injunction is an extraordinary and drastic remedy,

one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.”).

This interpretation leads to a rational reading of the

statute, as Congress could expect an entity receiving federal

funds to certify its compliance with federal law, as the entity

is – independent of receiving federal funds – obligated to

comply.

At oral argument, the City argued that this

interpretation is limitless, allowing the Attorney General to

pick from the United States Code like a menu at a restaurant.

For several reasons, the City’s consternation can be assuaged.

First, the default assumption is that states and localities do

comply with all federal laws. Second, the discretion to demand

certifications of compliance is not limitless. The limitations

on federal grant conditions announced in South Dakota v. Dole,

483 U.S. 203, 207-08 (1987), require that a particular

condition, such as a compliance certification, bear some

relation to the purpose of the federal funds. And further, as

noted at oral argument, any condition attached to federal grants

that is too burdensome defeats itself because a state or local

government could reject the funds and thus undermine the

Attorney General’s attempt to induce compliance with the

condition.

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The City argues that previous conditions have all been tethered to statutes that by their terms apply to federal grant recipients. This may be true, but the fact that the Attorney General has not exercised authority does not necessarily speak to whether he possesses it, especially where the statutory terms embrace such an authorization.
The City has not met its burden to show a likelihood of success on the merits regarding the lack of statutory authority for the compliance condition. The most natural reading of the statute authorizes the Attorney General to require a certification of compliance with all other applicable federal laws, which by the plainest definition includes Section 1373. The City offers no statutory or case law authority to support its narrower reading. Because the lack of authority supporting a narrower interpretation and the plain language of the statute counsel against the City’s interpretation of “all other applicable Federal laws,” the Court finds that the Attorney General has statutory authority to impose the compliance condition on the Byrne JAG grant.
2. Constitutionality of Section 1373 Even with Congressional authorization, the compliance condition must be proper under the Spending Clause, and Section 1373 must pass constitutional muster. As the City has
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not argued that the compliance condition violates the Spending Clause, the Court now turns to the Section 1373 question.
Although Congressional power is substantial, Congress may not simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Travis v. Reno, 163 F.3d 1000, 1003 (7th Cir. 1998). It also cannot require states “to govern according to Congress’ instructions” or circumvent the rule by “conscripting the State’s officers directly.” Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 162 (1992). These prohibitions derive from principles of federalism ingrained in our constitutional system, under which “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012); see also, Gregory, 501 U.S. at 459 (“In the tension between federal and state power lies the promise of liberty.”).
With the existence of two sovereigns comes occasional conflict. The Supremacy Clause provides the clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. “As long as it is acting
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within the powers granted it under the Constitution, Congress

may impose its will on the States [and] . . . may legislate in

areas traditionally regulated by the States.” Gregory, 501 U.S.

at 459-60. Further, the presumption attached to every statute

is that it is a constitutional exercise of legislative power.

Reno, 528 U.S. at 148. We start there, attaching the

presumption of constitutionality to Section 1373. Section 1373,

in relevant part, provides that “no person or agency may

prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect

to information regarding the immigration status, lawful or

unlawful, of any individual: (1) Sending such information to,

or requesting or receiving such information from, the

Immigration and Naturalization Service; (2) Maintaining such

information; (3) Exchanging such information with any other

Federal, State, or local government entity.”

8 U.S.C.

§ 1373(b).

It is undisputed that Congress has plenary power to

legislate on the subject of aliens. See, Takahashi v. Fish and

Game Commission, 334 U.S. 410, 419 (1948) (“The Federal

Government has broad constitutional powers in determining what

aliens shall be admitted to the United States, the period they

may remain, regulation of their conduct before naturalization,

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and the terms and conditions of their naturalization.”). Indeed, immigration regulation and enforcement are federal functions. See, Arizona, 567 U.S. at 396-97. Nonetheless, the City argues that Section 1373 violates the Tenth Amendment because it “requires state and local officers to provide information that belongs to Chicago and is available to them only in their official capacity” and requires “state officials to assist in the enforcement of federal statute by regulating private individuals.” (Pl.’s Brief at 20 (internal quotations omitted).) Specifically, the City contends that Section 1373 commandeers state and local governments by “controlling the actions of their employees.” Ibid.
The constitutionality of Section 1373 has been challenged before. The Second Circuit in City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), addressed a facial challenge to Section 1373 in similar circumstances. By executive order, New York City prohibited its employees from voluntarily providing federal immigration authorities with information concerning the immigration status of any alien. Id. at 31-32. The city sued the United States, challenging the constitutionality of Section 1373 under the Tenth Amendment. Id. at 32.

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The Second Circuit found that Section 1373 did not compel state or local governments to enact or administer any federal regulatory program or conscript local employees into its service, and therefore did not run afoul of the rules gleaned from the Supreme Court’s Printz and New York decisions. City of New York, 179 F.3d at 35. Rather, the court held that Section 1373 prohibits local governmental entities and officials only from directly restricting the voluntary exchange of immigration information with the INS. Ibid. The Court found that the Tenth Amendment, normally a shield from federal power, could not be turned into “a sword allowing states and localities to engage in passive resistance that frustrates federal programs.” Ibid. The Second Circuit concluded that Congress may forbid state and local governments from outlawing their officials’ voluntary cooperation with the INS without violating the Tenth Amendment. Ibid. As such, the court nullified New York City’s executive order mandating non-cooperation with federal immigration authorities to the extent it conflicted with Section 1373. Id. at 37.
The City argues that City of New York v. United States contravenes the Seventh Circuit’s decision in Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998), by impermissibly applying a balancing analysis to encroachments on federalism. We agree
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with the City that balancing the weight of a federalism

infringement is inappropriate, not only under this Circuit’s

precedent in Travis, 163 F.3d at 1003, but Supreme Court

precedent as well. See, Printz, 521 U.S. at 932 (noting that,

where “it is the whole object of the law to direct the

functioning of the state executive, and hence to compromise the

structural framework of dual sovereignty, such a ‘balancing’

analysis is inappropriate . . . [N]o comparative assessment of

the various interests can overcome that fundamental defect.”)

(emphasis omitted). However, the logic of City of New York’s

holding is not indebted to an impermissible balancing test.

Rather, City of New York relies on the distinction between an

affirmative obligation and a proscription:

In the case of Sections 434 and [1373], Congress has

not compelled state and local governments to enact or

administer any federal regulatory program. Nor has it

affirmatively conscripted states, localities, or their

employees into the federal government’s service. These

Sections do not directly compel states or localities

to require or prohibit anything.

Rather, they

prohibit state and local governmental entities or

officials only from directly restricting the voluntary

exchange of immigration information with the INS.

City of New York, 179 F.3d at 34-35 (citation omitted). The

improper balancing the City highlights occurs where the Second

Circuit addressed a secondary question yet found the record

insufficient to supplant its prior analysis. Id. at 36-37. The

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prior analysis was its holding – free from any inappropriate balancing – that states do not have the power “to command passive resistance to federal programs.” Id. at 37. Granted, City of New York does not fully address or answer two arguments that are presented in this case: first, that the federal government cannot demand information belonging to the state; and second, that it cannot (even indirectly) control the scope and nature of the duties of state and local employees. Id. at 36. The Second Circuit merely deemed the record insufficient on both scores. Ibid. Regardless, Supreme Court precedent does not command a different result.
The City relies on Printz, but there, the statute at issue required state officers to perform mandatory background checks on prospective handgun purchasers – an affirmative act foisted on local officials by Congress. See, 521 U.S. at 933. The Supreme Court held that the statute violated the Tenth Amendment, because the federal government cannot “command the States’ officers . . . to administer or enforce a federal regulatory program.” Id. at 935. However, Section 1373 does not require the “forced participation” of state officers to “administer or enforce a federal regulatory program.” Id. at 917-18. It merely precludes a state or local government from “prohibit[ing], or in any way restrict[ing], any . . . official”
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from sending, requesting, maintaining, or exchanging “information regarding the immigration status . . . of any individual.” 8 U.S.C. § 1373. In other words, it prohibits prohibitions on local officials’ voluntary participation.
For similar reasons, other cases cited by the City do not advance the ball either. See, e.g., Reno, 528 U.S. at 151 (finding the Driver’s Privacy Protection Act constitutional because “[i]t does not require the [state] Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals”); New York, 505 U.S. at 188 (finding a “take title” provision on nuclear waste unconstitutional because it forced a state to “enact or administer a federal regulatory program” by affirmatively requiring it to legislate a certain way or take ownership of nuclear waste); F.E.R.C. v. Mississippi, 456 U.S. 742, 765 (1982) (finding no Tenth Amendment violation in provisions of the Public Utilities Regulatory Policies Act permitting states to regulate public utilities on the condition that they entertain federal proposals, as the statute contained nothing “directly compelling” states to enact a legislative program).
At its core, this case boils down to whether state and local governments can restrict their officials from voluntarily
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cooperating with a federal scheme. The Court has not been presented with, nor could it uncover, any case holding that the scope of state sovereignty includes the power to forbid state or local employees from voluntarily complying with a federal program. Like the statute at issue in Reno, Section 1373 “does not require” the City “to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno, 528 U.S. at 151. Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. This distinction is meaningful. In this distinction, Section 1373 is consistent with the constitutional principles enunciated in New York and Printz. See, Printz, 521 U.S. at 935; New York, 505 U.S. at 161-63. Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
It is worth noting, however, that this case poses a unique and novel constitutional question. The characterization of
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Section 1373 as a prohibition that requires no affirmative state action accurately conveys the literal text of the statute, but it does not accurately portray its practical import. Section 1373 mandates that state and city employees have the option of furnishing to the INS information on individuals’ immigration status while the employee is acting in his or her capacity as a state or local official. The corollary is that local governments cannot both comply with Section 1373 and discipline an employee for choosing to spend his or her time assisting in the enforcement of federal immigration laws. If a state or local government cannot control the scope of its officials’ employment by limiting the extent of their paid time spent cooperating with the INS, then Section 1373 may practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program. In this way, Section 1373 may implicate the logic underlying the Printz decision more than it does the Reno rationale. See, Printz, 521 U.S. at 929-30.
Read literally, Section 1373 imposes no affirmative obligation on local governments. But, by leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers’ ability to extricate their state or municipality
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from involvement in a federal program. Under current case law,

however, only affirmative demands on states constitute a

violation of the Tenth Amendment. Here, we follow binding

Supreme Court precedent and the persuasive authority of the

Second Circuit, neither of which elevates federalism to the

degree urged by the City here. A decision to the contrary would

require an expansion of the law that only a higher court could

establish.

Accordingly, the City has not shown a likelihood of success

on the merits on the constitutionality of Section 1373.

C. Irreparable Harm

The City has demonstrated the second factor of the

preliminary injunction analysis – irreparable harm.

In

assessing irreparable harm, courts must analyze whether the

“harm . . . cannot be prevented or fully rectified by the final

judgment after trial.” Roland Mach. Co. v. Dresser Indus.,

Inc., 749 F.2d 380, 386 (7th Cir. 1984). Injury to reputation

or goodwill is not easily measurable in monetary terms, and so

often is deemed irreparable. Stuller, Inc. v. Steak N Shake

Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012). Here, the

City contends that, in the absence of an injunction, it must

either forego the Byrne JAG grant funds it has specifically

earmarked for life-saving technology that detects when and where

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gunshots are fired (P.I. Hrg. Tr. at 31:8-32:9) or accede to the new conditions the Attorney General has placed on the funds and suffer the collapse of trust between local law enforcement and immigrant communities that is essential to ferreting out crime.
Two recent cases have dealt with preliminary injunctions regarding facts similar to those before the Court. Though the legal issues presented in these cases are different than those at bar, the harms alleged are sufficiently analogous. In both cases, the district court found that the plaintiff established irreparable injury. In City of El Cenizo v. State, the court entered a preliminary injunction and credited the plaintiff’s assertion that it would suffer two forms of irreparable harm: (1) “Trust between local law enforcement and the people they serve, which police departments have worked so hard to promote, will be substantially eroded and result in increased crime rates”; and (2) “Local jurisdictions face severe economic consequences . . . including . . . the loss of grant money.” City of El Cenizo v. State, No. SA-17-CV-404-OLG, 2017 WL 3763098, at *39 (W.D. Tex. Aug. 30, 2017). In County of Santa Clara v. Trump, the court found that the plaintiff established a “constitutional injury” and irreparable harm “by being forced to comply with an unconstitutional law or else face financial injury.” County of Santa Clara v. Trump, No. 17-CV-00485-WHO,
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2017 WL 1459081, at *27 (N.D. Cal. Apr. 25, 2017), reconsideration denied, No. 17-CV-00485-WHO, 2017 WL 3086064 (N.D. Cal. July 20, 2017).
The harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable. Once such trust is lost, it cannot be repaired through an award of money damages, making it the type of harm that is especially hard to “rectif[y] by [a] final judgment.” Roland Mach., 749 F.2d at 386.
The Attorney General minimizes the impact of the relatively modest Byrne JAG funds on public safety and argues that the City could, by simply declining the funds, avoid any loss of trust between local law enforcement and the immigrant communities. However, a “Hobson’s choice” can establish irreparable harm. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). In Morales, the Supreme Court held that a forced choice between acquiescing to a law that the plaintiff believed to be unconstitutional and violating the law under pain of liability was sufficient to establish irreparable injury. Ibid. In the same way, forcing the City either to decline the grant funds based on what it believes to be unconstitutional conditions or accept them and face an irreparable harm, is the type of “Hobson’s choice” that supports irreparable harm. Further, a
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constitutional violation may be sufficient to establish
irreparable injury as a matter of law. See, 11A Charles Alan
Wright et al., Federal Practice & Procedure § 2948.1 (2d ed.
1995) (“When an alleged deprivation of a constitutional right is
involved, most courts hold that no further showing of
irreparable injury is necessary.”); see also, Ezell v. City of
Chicago, 651 F.3d 684, 698–700 (7th Cir. 2011); Doe v. Mundy,
514 F.2d 1179, 1183 (7th Cir. 1975).
The lack of injury afflicting the Attorney General in the
absence of an injunction buttresses the City’s showing of
irreparable harm. The Seventh Circuit has described this factor
as follows:
In deciding whether to grant a preliminary injunction, the court must also consider any irreparable harm that the defendant might suffer from the injunction—harm that would not be either cured by the defendant’s ultimately prevailing in the trial on the merits or fully compensated by the injunction bond that Rule 65(c) of the Federal Rules of Civil Procedure requires the district court to make the plaintiff post. The cases do not usually speak of the defendant’s irreparable harm, but the qualification is implicit; if the defendant will not be irreversibly injured by the injunction because a final judgment in his favor would make him whole, the injunction will not really harm him. But since the defendant may suffer irreparable harm from the entry of a preliminary injunction, the court must not only determine that the plaintiff will suffer irreparable harm if the preliminary injunction is denied—a threshold requirement for granting a preliminary injunction—but also weigh that harm against any irreparable harm that

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the defendant can show he will suffer if the injunction is granted. Roland Mach., 749 F.2d at 387 (emphasis in original). Although harm to federal interests should not be diminished, a delay in the imposition of new conditions that have yet to go into effect will likely not cause any harm akin to that alleged by the City. The Attorney General has put forth no comparable claim that a delay in imposition of the new Byrne JAG conditions would permanently harm community relationships or any other interest that would be difficult to remedy through money damages. See, Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001) (noting that maintaining the status quo was unlikely to affect a substantial public interest in the short time of the injunction). Thus, the Court finds that the City has established that it would suffer irreparable harm if a preliminary injunction is not entered.
D. Balancing of Equities and the Public Interest The remaining two factors in the preliminary injunction analysis merge where the Government is a party. Nken, 556 U.S. at 435. These two factors are not outcome-determinative here. Both sides can claim that concerns of public safety justify their positions.

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The City and amici strongly emphasize the studies and other evidence demonstrating that sanctuary cities are safer than their counterparts. Although both parties before the Court have emphatically stressed the importance of their policy choice to decrease crime and support law enforcement – with Chicago emphasizing the benefits that flow from immigrant communities freely reporting crimes and acting as witnesses, and the Attorney General emphasizing the need to enforce federal immigration law – choosing between competing public policies is outside the realm of judicial expertise and is best left to the legislative and executive branch. See, Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (noting that the courts are “vested with the authority to interpret the law; [they] possess neither the expertise nor the prerogative to make policy judgments”).
Accordingly, the final two factors favor neither party. Both parties have strong public policy arguments, the wisdom of which is not for the Court to decide. Accordingly, the Court finds that balancing the equities and weighing the public interest do not tip the scale in favor of either party.
III. CONCLUSION For the reasons stated herein, the Court grants the City a preliminary injunction against the Attorney General’s imposition
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of the notice and access conditions on the Byrne JAG grant. The City has established a likelihood of success on the merits as to these two conditions and irreparable harm if an injunction does not issue, and the other two preliminary injunction factors do not sway the analysis. This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction. See, Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017).
The Court denies the City’s Motion for a Preliminary Injunction with respect to the compliance condition, because the City has failed to establish a likelihood of success on the merits.

IT IS SO ORDERED.

Dated: September 15, 2017

Harry D. Leinenweber, Judge United States District Court

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ATTACHMENT 3 FIRST HANSEN DECLARATION

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Exhibit A*

* In the document that follows, on the page labeled "1 of 20," information in the original document has been redacted in fields 2a ("GRANTEE IRS/VENDOR NO") and 2b ("GRANTEE DUNS NO").

Case: 1:17-cv-05720 Document #: 32-1 Filed: 08/24/17 Page 4 of 58 PageID #:469

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) County of Greenville 301 University Ridge, Suite 600 Greeville, SC 29601
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE Judicial Support and Law Enforcement Enhancements 2017

4 AWARD NUMBER: 2017-DJ-BX-0002

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2020 10/01/2016 TO 09/30/2020

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 163,164

11 TOTAL AWARD

$ 163,164

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Joseph M Kernell County Administrator

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0339

X

B

DJ

80

00

00

163164

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

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AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

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Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

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AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

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AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373 htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

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Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

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AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

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AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.

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Exhibit B*

* In the document that follows, on the page labeled "1 of 20," information in the original document has been redacted in fields 2a ("GRANTEE IRS/VENDOR NO") and 2b ("GRANTEE DUNS NO").

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) City of Binghamton 38 Hawley Street Binghamton, NY 13901-3777
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE BJA FY 2017 Edward Byrne Memorial Assistance Grant JAG (Parks)

4 AWARD NUMBER: 2017-DJ-BX-0001

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2018 10/01/2016 TO 09/30/2018

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 24,259

11 TOTAL AWARD

$ 24,259

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Richard C David Mayor

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0338

X

B

DJ

80

00

00

24259

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

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Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

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Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

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Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

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AWARD CONTINUATION SHEET
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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

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Case: 17-2991 Document: 8-4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

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Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

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Grant

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PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.
59. Initial period of performance; requests for extension
The recipient understands that the initial period of performance for this award is two years. The recipient further understands that any requests for an extension of the period of performance for this award will be approved automatically for up to a total of two additional years, pursuant to 42 U.S.C. 3751(f) and in accordance with the program solicitation associated with this award.
Any request for an extension of the period of performance beyond a four-year award period will require approval, and the approval (if any) will be at the discretion of the Director of BJA.
60. Withholding of funds: Budget narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviewed and accepts, the budget narrative for the award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
61. Withholding of funds: Program narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviews and accepts, the program narrative for this award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
62. Withholding of funds: Memorandum of Understanding
The recipient may not obligate, expend, or draw down any award funds until OJP has reviewed and approved the Memorandum of Understanding (MOU), and a Grant Adjustment Notice (GAN) has been issued to remove this condition.

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ATTACHMENT 4 SECOND HANSEN DECLARATION

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 No. 17-2991
UNITED STATES COURT OF APPEALS COURT FOR THE SEVENTH CIRCUIT

THE CITY OF CHICAGO,
Plaintiff-Appellee, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
Defendant-Appellant.

Appeal from the United States District Court, Northern District of Illinois, Eastern Division
No. 17 CV 05720
The Honorable Harry D. Leinenweber, Judge Presiding

MOTION TO SUSPEND BRIEFING ON AND CONSIDERATION OF DEFENDANTAPPELLANT’S MOTION FOR PARTIAL STAY PENDING APPEAL
Chicago respectfully requests that this Court suspend briefing on and consideration of the motion for a stay pending appeal filed by Defendant-Appellant Attorney General Sessions on October 13, 2017 because this Court currently lacks jurisdiction over this appeal.
On September 15, the district court (Leinenweber, J.) entered a preliminary injunction against the Attorney General in this action, which was brought by the City of Chicago to enjoin three unlawful conditions the Attorney General has sought to impose on a federal formula grant. In its decision, the district court enjoined two of the conditions but declined to enjoin the third. On September 26, the Attorney General filed a notice of appeal and sought a partial stay of the injunction pending his appeal from the district court. On October 12, with the stay motion pending, Chicago received a letter from the Department of Justice, which among other things made statements regarding the third condition that were inconsistent with representations made by the Attorney General to the district court. On October 13, Chicago filed a motion in the district court for partial reconsideration under Fed. R. Civ. P. 59(e) of the district court’s decision not to enjoin

the third condition, based on the new evidence contained in the letter. On the same day, the district court denied the Attorney General’s request for a partial stay of the injunction as to the two enjoined conditions, and the Attorney General filed a motion for a partial stay in this Court.
Under the Federal Rules and this Court’s cases, the filing of the motion for partial reconsideration suspended the operation of the notice of appeal in this case until the district court rules on the City’s motion for partial reconsideration, leaving this Court without appellate jurisdiction during the pendency of that motion. Chicago accordingly requests that this Court suspend briefing on and consideration of the Attorney General’s stay motion and hold the motion in abeyance until the district court resolves the City’s motion for partial reconsideration. Chicago will respond on the merits to the Attorney General’s stay motion by October 18, 2017, the response date ordered this morning by the Court, in the event that the Court does not so suspend briefing on the Attorney General’s motion.
BACKGROUND Chicago brought this action on August 7, 2017, challenging three conditions imposed by the Attorney General on federal funding pursuant to the Byrne JAG program, a formula grant program created by Congress to support local law enforcement priorities. See Compl. ¶¶ 36-42, D. Ct. Dkt. 1. Two of these conditions, the “notice” and “access” conditions, which required local governments to take various measures in aid of federal immigration enforcement efforts, were imposed for the first time on fiscal year 2017 Byrne JAG funding only weeks earlier. Id. ¶¶ 55-59. The other, the Section 1373 condition, which requires compliance with 8 U.S.C. § 1373, had purportedly applied to fiscal year 2016 funding as well. At the request of the Department of Justice, and without conceding the lawfulness of the Section 1373 condition, Chicago certified compliance with that condition in a letter to the Department on June 30, 2017. Id. ¶¶ 3-4, 44-54; see also Ex. A, Complaint, D. Ct. Dkt. 1-1 (Siskel Mem. to Office of Justice Programs, U.S. Dep’t of Justice).
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Chicago sought a preliminary injunction enjoining the imposition of all three conditions. On September 15, 2017, the district court granted a nationwide injunction against the Attorney General’s new “notice” and “access” conditions, finding that these conditions were ultra vires because the Attorney General had no legal authority to impose them. See PI Op. at 11-19, 40-41, D. Ct. Dkt. 78. The district court also held, while expressing some reservations, that Chicago was not likely to succeed on the merits as to the Section 1373 condition. See id. at 20-35. Among other arguments, the district court rejected the City’s contention that Section 1373 violates constitutional anti-commandeering principles. The district court held that “only affirmative demands on states constitute a violation of the Tenth Amendment.” Id. at 35. And it noted that, as confirmed by the Attorney General’s representations at oral argument, “[r]ead literally, Section 1373 imposes no affirmative obligation on local governments.” Id. at 34.
On September 26, 2017, eleven days after the district court’s decision, the Attorney General noticed an appeal, and moved in the district court for a partial stay pending appeal as to the preliminary injunction’s nationwide effect. See Mot., D. Ct. Dkts. 80, 81. The District Court denied the stay motion on October 13, 2017, holding that the Attorney General was not likely to succeed in obtaining a stay from this Court, and setting forth in greater detail why the court believed that this case, in particular, merited a nationwide injunction as to the notice and access conditions. See Stay Op., D. Ct. Dkt. No. 98.
Meanwhile, on October 12, 2017, with the stay motion still pending before the district court, the Department of Justice sent Chicago a letter responding to Chicago’s June 30 certification of compliance with 8 U.S.C. § 1373, and setting forth an expansive new interpretation of Section 1373 that differed from the positions the Attorney General had taken during the litigation of the preliminary injunction motion. See Reconsid. Mem. at 3-5, D. Ct. Dkt. 101; Holtzblatt Decl. Ex. A, D. Ct. Dkt. 103-1. Because the letter undermined the premises relied on by the district court in its
3

decision as to the Section 1373 condition, Chicago timely moved for partial reconsideration in the district court pursuant to Rule 59(e) of the Federal Rules the next day—i.e., the same day as the district court’s decision on the stay, and the Attorney General’s filing of the stay motion in this Court. See Mot., D. Ct. Dkt. 99; Reconsid. Mem., D. Ct. Dkt. 101.
On the morning of October 16, this Court ordered Chicago to respond to the Attorney General’s stay motion by October 18, 2017. Order, No. 17-2991 (7th Cir. Oct. 16, 2017). Also on October 16, 2017, Benna Ruth Solomon, Deputy Corporation Counsel for the City of Chicago Appeals Division, telephoned Daniel Tenny, an attorney for the Attorney General, to advise him that this motion would be filed today.
ARGUMENT There is currently a timely pending motion for partial reconsideration in the district court, and a pending motion for a partial stay pending appeal in this Court. Because the filing of a timely motion for reconsideration in the district court leaves this Court without jurisdiction over this appeal until the district court resolves the motion, the proper course is for this Court to hold the stay motion (and any further briefing related to that motion) in abeyance while the district court decides the reconsideration motion. When a notice of appeal is filed before a motion for reconsideration, “the notice becomes effective … when the order disposing of the [reconsideration motion] is entered.” Fed. R. App. P. 4(a)(4)(B)(i). The notice of appeal—and thus, jurisdiction over the appeal itself—is “suspended” while the reconsideration motion is pending. Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733, 737 (7th Cir. 2004) (“[T]his court lacks jurisdiction to entertain this appeal until the district court has ruled on [the reconsideration] motion”); accord Florian v. Sequa Corp., 294 F.3d 828, 829 (7th Cir. 2002) (“Until then the appeal is suspended—dormant—unripe.”); United States v. Gargano, 826 F.2d 610, 611 (7th Cir. 1987) (holding under the prior version of Appellate Rule 4(a)(4) that reconsideration motion
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“deprived us of appellate jurisdiction”); see also generally Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 59 (1982) (“[I]n order to prevent unnecessary appellate review, the district court was given express authority to entertain a timely motion to alter or amend the judgment under Rule 59, even after a notice of appeal had been filed.”).
A timely motion for reconsideration filed by any party suspends the effectiveness of the notice of appeal for all parties, “regardless of whether the motion was filed by a party other than the appellant or was directed to a part of the judgment not adverse to the appellant and, thus, distinct from the matters for which the appellant seeks review.” Haas v. Tulsa Police Dep’t ex rel. Tulsa, 58 F. App’x 429, 431 (10th Cir. 2003); accord F.E.L. Publ’ns, Ltd. v. Catholic Bishop of Chicago, 739 F.2d 284, 284-85 (7th Cir. 1984) (same); U.S. for Use of Pippin v. J.R. Youngdale Constr. Co., 923 F.2d 146, 148 (9th Cir. 1991) (“If any party to the action files a Rule 59(e) motion, the time to file a notice of appeal is tolled for all parties.”); see also Fed. R. App. P. 4(a) (covered motion by “a party” tolls “the time to file an appeal … for all parties” (emphasis added)).
When the filing of a motion for reconsideration has suspended a notice of appeal, this Court has held that it is a “mistake” to allow the appeal to proceed any further; rather “[b]riefing should [be] held in abeyance” until the district court rules. Florian, 294 F.3d at 829. That includes briefing and consideration of a motion for stay pending appeal, for “appellate jurisdiction over the underlying appeal” is a “prerequisite for consideration of a motion for stay pending appeal.” Ammi v. Holder, 326 F. App’x 483, 484 (10th Cir. 2009) (unpublished decision); accord Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 756-757 (10th Cir.1993); Parham v. Cmty. Coll. of Aurora, 198 F.3d 258 (10th Cir. 1999) (unpublished decision).
Here, Chicago timely moved for partial reconsideration under Rule 59 on October 13, 2017. The motion was necessitated by the receipt of a letter from the Department of Justice the day before, and could not have been filed any earlier. In light of the timely filing of a Rule 59 motion,
5

the proper course is to hold briefing on the pending stay motion “in abeyance,” toll the period for a response to the motion, and resume after the resolution of the Rule 59 motion by the district court. E.g., Florian, 294 F.3d at 829.1
This morning, the Court ordered Chicago to respond on the merits to the stay motion by October 18. Chicago will file a merits opposition to the Attorney General’s stay motion within the time ordered by the Court, unless the Court grants this motion to suspend briefing on and consideration of the motion to stay. However, Chicago respectfully requests that the Court issue a further order suspending briefing on the merits of the stay motion, and providing that Chicago may file its opposition two days after the district court decides the pending Rule 59 motion for reconsideration, or at any other time certain after the district court’s resolution of the reconsideration motion that this Court deems proper.

October 16, 2017
JAMIE S. GORELICK DAVID W. OGDEN ARI HOLTZBLATT ARI SAVITZKY MOLLY JENNINGS TIFFANY WRIGHT BRIDGET FAHEY* WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

Respectfully Submitted,
EDWARD N. SISKEL Corporation Counsel of the City of Chicago
By /s/ Justin A. Houppert JUSTIN A. HOUPPERT Assistant Corporation Counsel BENNA RUTH SOLOMON Deputy Corporation Counsel ANDREW W. WORSECK Chief Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-0468

1 While equitable concerns regarding timeliness and the need for expedition are irrelevant because this Court altogether lacks appellate jurisdiction until the resolution of the Rule 59 motion, to the extent that they are relevant, the Attorney General opposed expediting these proceedings earlier in the litigation, when it suited him. See, e.g., Stay Op. at 16, D. Ct. Dkt. 98. This Court should not entertain contrary arguments from him now.

6

(202) 663-6000
DEBO P. ADEGBILE ADRIEL I. CEPEDA-DERIEUX WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

justin.houppert@cityofchicago.org benna.solomon@cityofchicago.org
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

7

CERTIFICATE OF SERVICE On the 16th day of October, 2017, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Justin A. Houppert JUSTIN A. HOUPPERT

DECLARATION

I, BENNA RUTH SOLOMON, state that I am Deputy Corporation Counsel for the Appeals Division of the City of Chicago Law Department, with supervisory responsibilities for all appellate litigation involving the City, and, as such, have knowledge of the following:

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the representation in this motion concerning my telephone conversation with Daniel Tenny is true and correct.

Executed October 16, 2017.

s/ Benna Ruth Solomon BENNA RUTH SOLOMON, Attorney

 
 Case: 17-2991 Document: 24-1

Filed: 10/18/2017 Pages: 12

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CITY OF CHICAGO, Plaintiff-Appellee, v.
JEFFERSON B. SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES, Defendant-Appellant.

No. 17-2991

DEFENDANT-APPELLANT’S OPPOSITION TO PLAINTIFFAPPELLEE’S MOTION TO STAY BRIEFING ON AND
CONSIDERATION OF DEFENDANT-APPELLANT’S MOTION FOR A PARTIAL STAY PENDING APPEAL

Case: 17-2991 Document: 24-1

Filed: 10/18/2017 Pages: 12

INTRODUCTION The Attorney General has asked this Court for a partial stay of the district court’s preliminary injunction order of September 15, 2017, which enjoins the Department of Justice from including two challenged conditions in awards to states and localities that receive funds through the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). We have asked that the order be stayed insofar as it applies to applicants other than the City of Chicago—the only plaintiff in this case. Chicago now asks this Court to suspend consideration of the motion for a partial stay. It bases this request on its filing, on October 13, of a motion to reconsider the denial of an injunction with respect to a third grant condition that is not at issue in the government’s appeal or the motion for a stay. The City asserts that, by seeking reconsideration of the part of the case that it lost, it can deprive the federal government of the ability to seek a stay, thus locking the nationwide injunction in place. Unsurprisingly, the City offers no authority that remotely supports its position. The Federal Rules of Appellate Procedure do not transform Federal Rule of Civil Procedure 59(e) into a weapon by which a party can preclude its opponent from pursuing a right of appeal provided by statute, or from seeking an immediate stay of a preliminary injunction from the court of appeals. Were it otherwise, any party could defeat its opponent’s right to appeal an injunction under 28 U.S.C. § 1292(a)(1) by seeking reconsideration of a different part of a district court ruling. Plaintiff’s theory accords with neither the case law nor sound policy. And, in any event, this Court would plainly have

Case: 17-2991 Document: 24-1

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jurisdiction to issue a stay in aid of its jurisdiction under the All Writs Act, 28 U.S.C. § 1651.
STATEMENT The federal government’s stay motion, filed on October 13, explains that the City of Chicago sought to enjoin three conditions on funding awarded to states and localities through the Byrne JAG Program. On September 15, the district court issued a preliminary injunction as to two of these conditions, described by the district court as the “notice” and “access” conditions. The court did not limit the application of the injunction to Chicago. Instead, the court made the injunction “nationwide in scope.” Merits Op., Dkt. 78, at 41. The court denied Chicago’s request for an injunction with respect to the third challenged condition, which the district court referred to as the “compliance” condition. That condition—which Chicago accepted in fiscal year 2016—requires grant recipients to certify compliance with 8 U.S.C. § 1373. The federal government filed a notice of appeal on September 26, 2017, and, that same day, moved in district court for a partial stay insofar as the injunction applies to entities other than Chicago. The district court denied the stay on October 13, and the federal government filed a motion for a partial stay in this Court on the same day. Also on October 13, the City filed a Rule 59(e) motion for reconsideration in the district court, asking the district court to reconsider its determination that the compliance condition should not be enjoined.
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On October 16, this Court ordered the City to respond to the stay motion by October 18. That same day, the City filed the motion currently at issue, asking this Court to suspend briefing on and consideration of the government’s motion for a partial stay.
ARGUMENT I. This Court has appellate jurisdiction.
Under 28 U.S.C. § 1292(a)(1), this Court has jurisdiction to review “[i]nterlocutory orders . . . granting . . . injunctions.” The federal government is thus entitled to immediate appellate review of the first provision of the district court’s September 15 decision, which states: “For the reasons stated herein, the Court grants the City a preliminary injunction against the Attorney General’s imposition of the notice and access conditions on the Byrne JAG grant.” Merits Op., Dkt. 78, at 40-41.
Chicago does not argue otherwise, but instead contends that the government has lost its ability to appeal because of a second, independent provision of the September 15 decision, which states: “The Court denies the City’s Motion for a Preliminary Injunction with respect to the compliance condition, because the City has failed to establish a likelihood of success on the merits.” Merits Op., Dkt. 78, at 41. According to Chicago, because the City has filed a reconsideration motion as to the denial of an injunction against the compliance condition, it has successfully prevented the United States from seeking immediate appellate review of the injunction against the notice and access conditions.
This unsupported theory has significant ramifications. The City’s motion was filed on the 28th day after entry of judgment. Under the City’s theory, this Court may not
3

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undertake consideration of a stay and the appeal until the City’s Rule 59(e) motion has been briefed and ruled on. The delay, for the reasons set out in the government’s motion for a partial stay, would be particularly significant in this case, in which, absent a stay, the government will be forced to choose between issuing awards subject to the terms of the injunction and delaying the awards to the detriment of recipients across the country.
Chicago cites no case in which review of a preliminary injunction has been thwarted in this fashion. Instead, it merely cites cases for the unremarkable proposition that a timely reconsideration motion by any party regarding the same order and judgment that is on appeal suspends the effectiveness of a notice of appeal. See Mot. 4-6. Those cases might be relevant if the district court were considering a timely reconsideration motion regarding the preliminary injunction at issue in this appeal, or if this Court’s jurisdiction were premised on 28 U.S.C. § 1291, which requires a judgment to be final in all respects. But this Court’s jurisdiction is premised on 28 U.S.C. § 1292(a)(1), which contemplates interlocutory review of injunctions, and the district court is not reconsidering its decision to issue an injunction. The cases on which Chicago relies are thus entirely inapposite.
The D.C. Circuit has recently confirmed that appellate jurisdiction over an injunction is not defeated by a motion for reconsideration of a separate ruling by the district court. In Fitzgerald v. Federal Transit Administration, No. 17-5132 (D.C. Cir. July 19, 2017) (unpub.) (attached), the district court had entered a final judgment granting injunctive relief and vacating the agency’s Record of Decision, but the plaintiff had sought reconsideration in order to expand the relief. The D.C. Circuit acknowledged
4

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that “the appellees’ timely Rule 59(e) motion deprived the judgment of finality,” but held that “[u]nder 28 U.S.C. § 1292(a), this court may grant the [appellant’s] motion for stay pending appeal of the district court’s grant of injunctive relief.” Id. at 1 (brackets and quotation marks omitted). The court explained that “the pending Rule 59(e) motion in this case does not pertain to the district court’s grant of injunctive relief that is the subject of the . . . motion for stay pending appeal,” but rather “is, atypically, a motion by the parties who prevailed on their request for injunctive relief.” Id. at 2. The D.C. Circuit noted that the movants “do not question vacatur of the Record of Decision; their motion is ‘limited to seeking clarification or confirmation’ of the breadth of the further environmental review the district court separately required.” Id. The court thus granted a stay pending appeal. Id.
Here, similarly, the pending motion for reconsideration does not pertain to the grant of injunctive relief that is the subject of the government’s appeal, and is instead a motion by the party that prevailed on its request for injunctive relief. This case is distinguishable from Fitzgerald only in that Fitzgerald involved a final judgment, and the motion for reconsideration transformed the final judgment (originally appealable under 28 U.S.C. § 1291) into an interlocutory decision, part of which was immediately appealable under 28 U.S.C. § 1292(a)(1) as an interlocutory order granting injunctive relief. This case is more straightforward: the district court’s injunction of the notice and access provisions was always appealable under 28 U.S.C. § 1292(a)(1), and the fact that Chicago has sought

5

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reconsideration of the simultaneously issued order denying an injunction as to the compliance condition has no bearing on this Court’s jurisdiction.
The D.C. Circuit’s decision properly applied the general principle, long made clear by the Supreme Court, that a district court can enter an appealable order and a nonappealable order in the same document. In Waco v. United States Fidelty & Guaranty Co., 293 U.S. 140 (1934), “the District Court, in a single decree, . . . entered one order dismissing a cross-complaint against one party, and another order remanding because there was no diversity of citizenship in light of the dismissal.” Powerex Corp v. Reliant Energy Servs., Inc., 551 U.S. 224, 236 (2007) (describing Waco). While “appellate jurisdiction existed to review the order of dismissal,” the Supreme Court “repeatedly cautioned that the remand order itself could not be set aside.” Id.
Similarly, in Swint v. Chambers County Commission, 514 U.S. 35 (1995), the Supreme Court considered an appeal from the denial, in a single document, of motions for summary judgment by a group of individual defendants and by a city and a county commission. The Supreme Court explained that although the court of appeals had “undisputed jurisdiction over the individual defendants’ qualified immunity pleas” under the collateral order doctrine, id. at 40, the court of appeals lacked jurisdiction to “review at once the unrelated question of the county commission’s liability,” id. at 51.
The policies animating Federal Rule of Appellate Procedure 4 underscore why it should not be applied in a manner that would allow appellate jurisdiction under § 1292(a)(1) over an order granting injunctive relief to be defeated by reconsideration of
6

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an independent order. The point of the suspension provided by Rule 4 is to “prevent unnecessary appellate review.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 59 (1982). As the Advisory Committee notes explain, “it would be undesirable to proceed with the appeal while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from.” Fed. R. App. P. 4 (1979 Advisory Committee Notes). Here, of course, there is no final judgment, so the only order at issue in this appeal is the injunction against the notice and access conditions. Chicago’s Rule 59(e) motion does not concern the injunction on appeal and a ruling on that motion will have no effect on this Court’s review of that injunction.
Rule 4 avoids the clash of district court and appellate jurisdiction by ensuring that the court of appeals’ review will not be preempted by a grant of reconsideration. The City’s theory would produce the opposite result, by depriving—or, in this case, divesting—the court of appeals of jurisdiction over an appeal, and preventing the issuance of a stay, merely because the district court was reconsidering an order that is not part of the appeal. There is no basis for that result in Rule 4, nor can it be reconciled with Congress’s express intent that preliminary injunctions be subject to immediate appeal, see 28 U.S.C. § 1292(a)(1). II. A stay would also be appropriate under the All Writs Act.
Even if Chicago’s motion for reconsideration could temporarily deprive this Court of appellate jurisdiction, it would not strip this Court of the ability to stay the district court’s order. The All Writs Act, 28 U.S.C. § 1651(a), authorizes courts to “issue all writs
7

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necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Exercise of that authority would be warranted here.
Chicago asks this Court to delay consideration of the government’s motion for a stay until after the district court’s resolution of the reconsideration motion. But due to the exigencies documented in our stay motion, a stay issued at that time might well be inadequate to redress the government’s irreparable harm. Chicago does not dispute that this Court will ultimately have jurisdiction over the federal government’s appeal, even if Chicago were correct in asserting that its Rule 59(e) motion temporarily divested the Court of jurisdiction. It has long been settled that a court’s authority under the All Writs Act “is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943). See also Coleman v. Paccar, Inc., 424 U.S. 1301, 1303 (1976) (Rehnquist, J., in chambers) (All Writs Act can be invoked to vacate a stay “where it appears that the rights of the parties to a case pending in the court of appeals . . . may be seriously and irreparably injured by the stay”).

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CONCLUSION
For the foregoing reasons, the motion to suspend briefing should be denied.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
MARK B. STERN
s/ Daniel Tenny DANIEL TENNY KATHERINE TWOMEY ALLEN (202) 514-1838
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7215 Washington, DC 20530
OCTOBER 2017

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CERTIFICATE OF COMPLIANCE I hereby certify that this opposition satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 2,167 words. This opposition was prepared using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced typeface.
s/ Daniel Tenny Daniel Tenny

Case: 17-2991 Document: 24-1

Filed: 10/18/2017 Pages: 12

CERTIFICATE OF SERVICE I hereby certify that on October 18, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.

s/ Daniel Tenny Daniel Tenny

Case: 17-2991 Document: 24-2

Filed: 10/18/2017 Pages: 3

ATTACHMENT
Fitzgerald v. Federal Transit Admin., No. 17-5132 (D.C. Cir. July 19, 2017)

USCA CCaassee#: 17-52193921 Document:#2146-824935 Filed:F1ile0d/1:80/72/01197/2017PagePsa: 3ge 1 of 2

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5132

September Term, 2016

1:14-cv-01471-RJL

Filed On: July 19, 2017

John M. Fitzgerald, et al.,

Appellees

v.

Federal Transit Administration, et al.,

Appellees

State of Maryland,

Appellant

-----------------------------Consolidated with 17-5161

BEFORE: Millett, Pillard, and Wilkins, Circuit Judges
O R D E R
Upon consideration of the emergency motion for stay pending appeal, the opposition thereto, and the reply; the motion to dismiss, the opposition thereto, and the reply; and the motion to expedite, the opposition thereto, and the reply, it is
ORDERED that the motion to dismiss be denied. Although the appellees’ timely Rule 59(e) motion “deprive[d] the judgment of finality,” see Derrington-Bey v. Dist. of Columbia Dep’t of Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994), the notice of appeal will “become[] effective to appeal [the] judgment . . . when the order disposing of the [pending Rule 59] motion is entered,” Federal Rule of Appellate Procedure 4(a)(4)(B)(i). Under 28 U.S.C. § 1292(a), this court may grant the State of Maryland’s motion for stay pending appeal of the district court’s grant of injunctive relief. See United States v. Philip Morris USA Inc., 840 F.3d 844, 849 (D.C. Cir. 2016); Comm. on the Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 910-11 (D.C. Cir. 2008). The district court granted appellees’ request for injunctive relief by vacating the Record of

USCA CCaassee#: 17-52193921 Document:#2146-824935 Filed:F1ile0d/1:80/72/01197/2017PagePsa: 3ge 2 of 2

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 17-5132

September Term, 2016

Decision, which, as the district court noted in this case, had the direct and intended effect of preventing the use of federal funds and halting the project. See Friends of the Capital Crescent Trail v. Fed’l Transit Admin., 200 F. Supp. 3d 248, 254 (D.D.C. 2016), and Amended Complaint at 59-60 (seeking to set aside the Record of Decision and enjoin defendants “from spending any federal funding on . . . or otherwise proceeding with” the challenged project). The May 22, 2017, order that denied reinstating the Record of Decision effectively “continu[ed]” or “refus[ed] to dissolve” the injunction, 28 U.S.C. § 1292(a)(1). See HonoluluTraffic.com v. Fed’l Transit Admin., 742 F.3d 1222, 1229 (9th Cir. 2014); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1358 (11th Cir. 2008); Sierra Club v. Glickman, 67 F.3d 90, 94 (5th Cir. 1995). Moreover, the pending Rule 59(e) motion in this case does not pertain to the district court’s grant of injunctive relief that is the subject of the State of Maryland’s motion for stay pending appeal. The Rule 59(e) motion is, atypically, a motion by the parties who prevailed on their request for injunctive relief. They do not question vacatur of the Record of Decision; their motion is “limited to seeking clarification or confirmation” of the breadth of the further environmental review the district court separately required. It is
FURTHER ORDERED that the emergency motion to stay the portion of the August 3, 2016, order that vacated the Record of Decision and the portion of the May 22, 2017, order that denied reinstating the Record of Decision be granted and the Record of Decision be reinstated pending appeal. The State of Maryland has satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2017). It is
FURTHER ORDERED that consideration of the motion to expedite be deferred pending further order of this court, while the district court acts on the pending Rule 59 motion. We are confident the district court will act promptly in this matter.
The Clerk is directed to transmit a copy of this order to the district court.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Robert J. Cavello Deputy Clerk
Page 2

 
 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

October 20, 2017

ORDER
Before WILLIAM J. BAUER, Circuit Judge DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge

CITY OF CHICAGO, Plaintiff - Appellee

No. 17-2991

v.

JEFFERSON B. SESSIONS III, Attorney General of the United States, Defendant - Appellant
Originating Case Information:
District Court No: 1:17-cv-05720 Northern District of Illinois, Eastern Division District Judge Harry D. Leinenweber

The following are before the court:
1. MOTION TO SUSPEND BRIEFING ON AND CONSIDERATION OF DEFENDANT-APPELLANT’S MOTION FOR PARTIAL STAY PENDING APPEAL, filed on October 16, 2017, by counsel for the appellee.
2. DEFENDANT-APPELLANT’S OPPOSITION TO PLAINTIFF-APPELLEE’S MOTION TO STAY BRIEFING ON AND CONSIDERATION OF DEFENDANTAPPELLANT’S MOTION FOR A PARTIAL STAY PENDING APPEAL, filed on October 18, 2017, by counsel for the appellee.

Appeal No. 17-2991

Page 2

On September 15, 2017, the district court entered an order granting in part and denying in part the City of Chicago's request for a preliminary injunction. The order enjoined imposition of notice and access conditions on the Edward Byrne Memorial Justice Assistance Grant program and applied the injunction nationwide. The Attorney General appealed on September 26 and asked this court to stay the nationwide application of the district court's order. On October 13 the City asked the district court to partially reconsider its preliminary injunction order and enjoin the imposition of a third grant condition requiring it to certify compliance with 8 U.S.C. § 1373. The City then asked us to suspend proceedings in this court, arguing that its motion to reconsider deprives this court of jurisdiction over the Attorney General's appeal.

Federal Rule of Appellate Procedure 4(a)(4)(B)(i) says, "If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." The list in Rule 4(a)(4)(A) includes a motion to alter or amend the judgment under Rule 59. The City of Chicago filed its motion to reconsider within 28 days after entry of the district court's preliminary injunction order, making it a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). In Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 403 (1982), the Supreme Court said that "a premature notice of appeal 'shall have no effect' . . . In short it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." Griggs quoted an earlier version of Rule 4(a)(4) that required dismissal of a premature appeal; under the current version of the rule a court of appeals may stay an appeal until the motion to reconsider is decided, but the appellate court lacks jurisdiction until the notice of appeal becomes effective. See Katerinos v. U.S. Dep't of Treasury, 368 F.3d 733, 738 (7th Cir. 2004).

The Attorney General concedes that the City's motion to reconsider is one filed under Rule 59(e), but argues that this court retains jurisdiction because the motion to reconsider does not pertain to the grant of injunctive relief that is the subject of his appeal. The Attorney General argues that the district court's ruling on the City's motion to reconsider the denial of injunctive relief on the § 1373 condition will have no effect on this court's review of the portion of the district court's order granting injunctive relief on the notice and access conditions. But a "judgment" as defined in Federal Rule of Civil Procedure 54(a) includes "any order from which an appeal lies." The City of Chicago has filed a motion to alter or amend the same judgment that the Attorney General seeks to appeal. To prevent two courts from having power to modify the same judgment, Rule 4(a)(4)(B)(i) renders a notice of appeal ineffective until the motion to reconsider the judgment is resolved. See Square D Co. v. Fastrak Softworks, Inc., 107 F.3d 448, 450 (7th Cir. 1997) (dismissing appeal from grant of preliminary injunction as premature because motion to reconsider pending in district court); F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 739 F.2d 284, 284 (7th Cir. 1984) (per curiam) (dismissing appeal where motion to

Appeal No. 17-2991

Page 3

reconsider addressed copyright claim and notice of appeal addressed different parts of judgment). The Attorney General also argues that it is significant that the motion to reconsider was filed by the party that prevailed on its request for injunctive relief rather than the party that appealed. But Rule 4(a)(4)(A) says that the filing of a designated motion extends "the time for appeal for all parties" (emphasis added) and thus the notice of appeal has no effect even if not filed by the appealing party. See Haas v. Tulsa Police Dept. ex rel. City of Tulsa, 58 Fed. Appx. 429 (10th Cir. 2003).

Under the clear language of Rule 4(a)(4)(B)(i), the Attorney General's appeal does not take effect until the motion to reconsider is resolved. Accordingly, IT IS ORDERED that the City of Chicago's motion is GRANTED and proceedings in this court are SUSPENDED until the district court resolves the City's motion for reconsideration. The parties shall file a status report with this court within two days after the district court resolves the City's motion to reconsider.

form name: c7_Order_3J(form ID: 177)

 
 Case: 1:17-cv-05720 Document #: 109 Filed: 10/23/17 Page 1 of 8 PageID #:1496

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES CONFERENCE OF

)

MAYORS; CITY OF CHICAGO,

)

)

Plaintiffs,

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS )

III,

)

)

Defendant.

)

Case No. 17-CV-5720 Honorable Harry D. Leinenweber

THE UNITED STATES CONFERENCE OF MAYORS’ MOTION FOR A PRELIMINARY INJUNCTION

The United States Conference of Mayors (the “Conference”), by its undersigned

attorneys, as intervening co-plaintiff with the City of Chicago, and pursuant to Federal Rule of

Civil Procedure 65, hereby moves for a nationwide preliminary injunction against the three

unauthorized and unconstitutional conditions concerning federal civil immigration enforcement

that Defendant Jefferson Beauregard Sessions III (“Defendant” or the “Attorney General”) has

attempted to place on the Byrne JAG program.

In support of this motion, the Conference submits the appended declaration of Tom

Cochran, the Conference’s Chief Executive Officer and Executive Director (Exhibit 1). In

further support of this motion, the Conference states as follows:

BACKGROUND

1. On August 7, 2017, the City of Chicago (“Chicago”), one of the Conference’s

members, filed this action seeking declaratory and injunctive relief. (Docket (“Dkt.”) 1.)

Chicago sought to invalidate three unauthorized and unconstitutional conditions concerning

federal immigration enforcement that Defendant placed on the receipt of federal law enforcement

funds under the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”).

Case: 1:17-cv-05720 Document #: 109 Filed: 10/23/17 Page 2 of 8 PageID #:1497
2. Specifically, Chicago challenged three of Defendant’s conditions for the receipt of Byrne JAG funds, under which grant applicants must agree to (1) “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act;” (2) “permit personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States;” and (3) certify compliance with 8 U.S.C. § 1373, which prohibits localities from restricting officers from sharing information regarding “citizenship or immigration status” with federal authorities. (See Conference Complaint, ¶¶ 46-57, Ex. E at 30.)
3. On August 10, 2017, Chicago moved for a preliminary injunction to enjoin these three conditions. (Dkt. 21, 22.)
4. On August 31, 2017, the Conference joined an amicus curiae brief in support of Chicago’s motion. (Dkt. 51.)
5. On September 15, 2017, the Court granted Chicago’s motion for a preliminary injunction as to two of the three challenged conditions (the “notice” and “access” conditions), finding that Defendant lacked statutory authority to impose them on grant applicants. (Dkt. 78.) The Court expressly ordered: “This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” (Id. at 41.)
6. However, the Court denied Chicago’s motion as to the third condition on the basis that, while 8 U.S.C. § 1373 restricts the ability of localities to prohibit officials from assisting in
2

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a federal program, “it does not require officials to assist in the enforcement of a federal program.” (Dkt. 78 at 33 (Court’s emphasis).) The Court acknowledged that as a practical matter, Section 1373 “may effectively thwart policymakers’ ability to extricate their state or municipality from involvement in a federal program,” but concluded that under current precedent, a literal reading of Section 1373 did not run afoul of the Constitution because “only affirmative demands on states [or municipalities] constitute a violation of the Tenth Amendment.” (Id. at 34-35.)
7. On September 26, 2017, Defendant filed a motion to stay the nationwide application of the preliminary injunction. (Dkt. 80, 81.) Defendant argued, for the first time, that the Court lacked jurisdiction under Article III of the United States Constitution to provide relief from the unlawful conditions to any jurisdiction other than Chicago. (Dkt. 81 at 4-6.) Had Defendant made that argument in his opposition to Chicago’s motion for preliminary injunction, the Conference could have come forward at that time, joined in Chicago’s motion, and avoided the need for this separate motion.
8. Because of Defendant’s new objection to Chicago’s Constitutional standing and the Court’s authority, the Conference appeared before this Court on September 28, 2017, to advise the Court of its intention to seek leave to intervene. On October 6, 2017, the Conference filed a motion to intervene as a co-plaintiff in this action, together with a complaint against Defendant.1
1 The Court has not ruled on the Conference’s motion to intervene. At the October 11, 2017 presentment of that motion, however, the Conference sought and obtained leave to file this motion prior to the Court granting intervention, so as not to further delay relief to the Conference’s members. Defendant did not object to the filing of this motion prior to intervention.
3

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9. On October 11, 2017, the Attorney General issued letters to Chicago, New York, New Orleans and Philadelphia, all of which are Conference members. (See Ex. 1, Cochran Declaration (“Decl.”) at ¶¶ 16, 21, 40.) In the letters, the Attorney General makes clear that he will require cities and their officers to affirmatively assist in federal immigration enforcement as a condition of receiving Byrne JAG funds. (Id. at ¶ 40, Ex. F.) Specifically, the Attorney General makes clear that, notwithstanding this Court’s injunction order, he interprets Section 1373 to require (1) that officers be permitted to share not just information regarding “citizenship and immigration status,” as is required by Section 1373 itself, but also to give advance notice of an alien, or suspected alien’s, release from custody, and (2) that cities affirmatively commit their time and resources to communicating DOJ’s interpretation of Section 1373 to each of its officers, and certify to DOJ that it has done so. (Id.)
10. Because the Attorney General’s October 11 letters make plain that, contrary to his own prior representations and this Court’s ruling, he will require localities to affirmatively aid in federal civil immigration enforcement, on October 13, 2017, Chicago moved for partial reconsideration of the Court’s prior ruling as it relates to Section 1373. (Dkt. 99, 101.)
11. On October 13, 2017, this Court denied Defendant’s motion to stay the nationwide scope of the Court’s preliminary injunction order. (Dkt. 97, 98.) Thereafter, Defendant filed a similar stay motion before the United States Court of Appeals for the Seventh Circuit. On October 20, 2017, the Court of Appeals suspended all proceedings on appeal, including any ruling on the Attorney General’s stay motion, because Chicago’s motion for partial reconsideration in this Court divested the appellate court of jurisdiction.
12. The Conference now files this motion for a preliminary injunction to obtain for its members the same injunctive relief that Chicago already has established is necessary and proper.
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ARGUMENT 13. The Conference’s complaint asserts the same claims on behalf of the Conference and its members that this Court relied upon in granting Chicago’s motion for a preliminary injunction. The Conference now adopts the same arguments that Chicago made in its motion for preliminary injunction, and in its separate motion for partial reconsideration. 14. Specifically, the Conference hereby joins in Chicago’s motion for a preliminary injunction (Dkt. 21), adopts by reference here the arguments raised by Chicago in support of its injunction motion (Dkt. 22, 69), and asks that, at a minimum, this Court grant the Conference the same nationwide injunction granted to Chicago (Dkt. 78) and rule that the order will issue in favor of the Conference as intervening co-plaintiff in this action. Additionally, the Conference joins in the City’s motion for partial reconsideration (Dkt. 99), adopts by reference the arguments raised by Chicago in support thereof (Dkt. 101), and asks that this Court enjoin Defendant from imposing the condition that Fiscal Year 2017 Byrne JAG recipients must certify their compliance with 8 U.S.C. § 1373, pending resolution of this action on the merits. 15. In short, for the reasons set forth in these supporting briefs and below, the Conference is entitled to the same injunctive relief granted to Chicago in this action. 16. In ruling on the City’s motion, this Court specifically found that Chicago was likely to succeed on its claims against the notice and access conditions (Dkt. 78 at 11-24), that it would suffer irreparable harm in the absence of injunctive relief (id. at 35-39), and that the balance of harms and public interest weighed in favor of an injunction (id. at 39-41). 17. The same is true of the Conference’s other members, whose likelihood of success, risk of irreparable harm, need for relief, and the related public interest likewise call for an injunction. (See Ex. 1, Cochran Decl. at ¶¶ 18-42.) Indeed, in seeking a stay of the injunction
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this Court issued, Defendant did not challenge Chicago’s right to this relief in any way, and thus the Conference does not exhaustively address each of these elements here.
18. Rather, in seeking a stay, Defendant has argued that nationwide injunctive relief should not have been entered in a case in which Chicago was the only interested plaintiff. Although, as the Court already ruled (see Dkt. 97, 98), Defendant is incorrect to argue that the Court lacked authority to grant Chicago nationwide injunctive relief, Defendant cannot make this claim with respect to the injunction the Conference now seeks. That is because the Conference represents the interests of over 1,400 cities across the United States. (Ex. 1, Cochran Decl. at ¶5.) Its currently active members, the majority of which are applicants for, and recipients of, Byrne JAG funds, are located across the country. (Id. at ¶¶ 5, 11-16, Ex. A.) Among the 82 cities whose mayors currently serve in a leadership role at the Conference, 71 member cities have been directly allocated over $21.5 million in funds for the Fiscal Year 2017 Byrne JAG program. (Id. at ¶ 11, Ex. A.) These cities alone are found in 31 states and the District of Columbia, and they rely upon the allocated funds for a variety of critical law enforcement programs. (Id. at ¶11, 15.) Given the Conference’s participation in this action, there can be no question as to the need for nationwide injunctive relief.
19. Moreover, like Chicago, the Conference’s other members rely upon Byrne JAG funds to fund the purchase and operation of critical, life-saving equipment, training and programming. (Id. at ¶ 15.) Yet the Conference and its members also recognize that the conditions imposed upon them this year by the Attorney General threaten to undermine the relationship between local law enforcement and immigrants in their communities that local law enforcement deems necessary to the successful prevention and prosecution of crime, and to the overall safety of their cities. (Id. at ¶¶ 19-43.) The Attorney General’s unauthorized and
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unlawful conditions thus leave the Conference and its members with the same “Hobson’s choice” this Court held constituted irreparable harm for Chicago (see Dkt. 78 at 35-39): forego funding needed to save lives or risk losing the trust of their immigrant communities, which itself saves lives. (Id. at ¶¶ 42-43.) As the Conference’s CEO and Executive Director testified, “No Conference member should have to make that choice.” (Id. at ¶ 43.) Indeed, under wellestablished law, the pressure to accept the Attorney General’s unauthorized conditions itself infringes on the sovereignty of the Conference’s members and therefore constitutes irreparable injury, regardless of their individual policy choices. (See Dkt. 23 at 21-22 (citing cases).)
20. Under the circumstances, there is no just reason for the Court to deny this motion by the Conference for the same preliminary injunctive relief issued by the Court in favor of Chicago and against Defendant, see Dkt. 78, or to deny the Conference any further relief granted in response to Chicago’s motion for partial reconsideration.
WHEREFORE, The United States Conference of Mayors prays that this Court grant it a preliminary injunction against Defendant in the form of the proposed order attached to this motion as Exhibit 2.

Dated: October 23, 2017
Brian C. Haussmann (ARDC # 6283054) John M. Fitzgerald (ARDC # 6282859) Katherine M. O’Brien (ARDC # 6300444) TABET DIVITO & ROTHSTEIN LLC 209 South LaSalle Street, 7th Floor Chicago, IL 60604 Telephone: (312) 762-9450 Facsimile: (312) 762-9451 bhaussmann@tdrlawfirm.com jfitzgerald@tdrlawfirm.com kobrien@tdrlawfirm.com

Respectfully submitted,
THE UNITED STATES CONFERENCE OF MAYORS
By: /s Brian C. Haussmann One of Its Attorneys

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 23, 2017, I electronically filed the foregoing The United States Conference of Mayors’ Motion for Preliminary Injunction with the Clerk of the Court for the United States District Court, Northern District of Illinois, Eastern Division, by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Brian C. Haussmann

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE UNITED STATES CONFERENCE OF MAYORS; CITY OF CHICAGO,
Plaintiffs, v.
JEFFERSON BEAUREGARD SESSIONS III,
Defendant.

) ) ) ) Case No. 17-CV-5720 ) ) Honorable Harry D. Leinenweber ) ) ) )

DECLARATION OF TOM COCHRAN I, Tom Cochran, declare as follows: 1. I am the Chief Executive Officer and Executive Director of the United States Conference of Mayors (the “Conference”). In that role, I serve as the chief administrative officer of the Conference, oversee the day-to-day operations of the Conference, and direct its staff. I have served the Conference in that capacity since 1987. 2. I submit this declaration in support of the Conference’s motion for a preliminary injunction. I have personal knowledge of each of the matters stated herein, and if called to testify would testify consistent with this declaration. The Conference and Its Members 3. The Conference is a non-profit association organized under the laws of Illinois and with its offices in the District of Columbia. 4. The Conference was formed in 1932, during the midst of the Great Depression, when the nation’s cities were close to bankruptcy and their residents were largely unemployed and without access to sufficient food, housing, law enforcement and other necessities. In response to

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the appeals of mayors across the country, Congress created a $300 million federal assistance program for cities, marking the first time in the nation’s history that federal relief was provided directly to cities. A few weeks later, the Conference was founded to coordinate cities’ interactions with the federal government.
5. Today the Conference is the official non-partisan organization of United States cities with populations of 30,000 or more. As such, the Conference represents the interests of over 1,400 cities in the United States, including cities in the Northern District of Illinois and in almost every other jurisdiction in the country. Over 150 million Americans reside in these cities.
6. The primary roles of the Conference are to promote the development of an effective national city and metro-area-focused policy, to strengthen federal-city relationships, to ensure that federal policy meets urban needs, to provide mayors with leadership and management tools that allow them to do their jobs better, and to create a forum in which mayors can share ideas, information and best practices, and through which cities can coordinate on shared policy goals.
7. Conference members speak with a united voice on organizational policies and goals. Mayors contribute to the development of national urban policy by serving on one or more of the conference’s standing committees or in another leadership role.
8. A true and correct list of member cities whose mayors are currently serving in leadership roles is attached as Exhibit A to this declaration. As reflected on Exhibit A, member cities whose mayors are currently serving in a leadership role are located across the country, in 34 states and the District of Columbia. The Conference’s Members Rely Upon Byrne JAG Funding.
9. The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program is a federal formula grant program that was established in 2006 to provide federal funding directly
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to states and municipalities to help those local jurisdictions with important local law enforcement objectives. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162.
10. Since 2006, most of the Conference’s members have applied for and received Byrne JAG grant funds. Indeed, many Conference members have applied for and received funds in each of the program’s 11 years of operation.
11. For example, of the 82 member cities (including the District of Columbia) whose mayors are currently serving in a Conference leadership role, 71 cities have been directly allocated funds for the Fiscal Year 2017 Byrne JAG program. (See Ex. A.) These include small cities such as Lima, Ohio, a city of approximately 38,000 residents that has been allocated $35,866 in funds, and Beaverton, Oregon, a city of approximately 89,000 residents that has been allocated $13,700 in funds.1 (Id.) It also includes large cities, such as Houston, Texas, a city of over 2 million residents that has been allocated $1,668,542 in funds; Los Angeles, California, a city of almost 3.8 million residents that has been allocated $1,555,265 in funds; and New York, New York, a city of over 8.1 million residents that has been allocated $4,120,447 in funds. Together, these 71 Conference member cities have been directly allocated over $21.5 million in Byrne JAG funds for the Fiscal Year 2017. (Id.)
12. Still other Conference members receive Byrne JAG funds indirectly through grants made to the states. These are typically smaller cities that receive a small share of the total Byrne JAG funds allocated. In Fiscal Year 2017, for example, the Office of Justice Programs will not make direct grants to cities that, under the Byrne JAG formula, would receive less than $10,000. (See https://www.bja.gov/funding/JAGLocal16.pdf, at p. 9 (last visited October 18, 2017).) This
1 Fund allocations are posted by the Department of Justice, Office of Justice Programs, and are available at https://www.bja.gov/Programs/jag/17jagallocations.html (last visited October 17, 2017.)
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includes numerous of the Conference’s member cities. For example, Conference member
Piscataway, New Jersey receives funds through a grant made directly to the State of New Jersey
that is then shared among its municipalities.
13. Still other Conference members receive Byrne JAG funds indirectly through grants
made to counties or other subdivisions of state and local governments.
14. Most of the Conference’s members are allocated Byrne JAG funds, either directly
or indirectly through a state or countywide grant.
15. In my role for the Conference, my staff and I work closely with our member mayors
on policy matters relating to the Byrne JAG program. In that role, I am privy to the many and
diverse uses to which Conference members put Byrne JAG funds. These include, for example, the
following Conference members:
a. Chicago, Illinois has used Byrne JAG funds to support projects ranging from critical law enforcement equipment and overtime to community policing outreach and engagement.
b. Iowa City, Iowa uses Byrne JAG funds to promote traffic safety, to establish a search and rescue program aimed at individuals at risk for wandering, to partially fund a drug task force, and to purchase equipment.
c. Los Angeles, California uses Byrne JAG funds for its Community Law Enforcement and Recovery (CLEAR) program, which aims to reduce gang violence in the city and rehabilitate communities that have experienced significant crime. The program promotes and funds special criminal investigative units, an aggressive vertical prosecutorial program, probation and parole officers, youth intervention organizations, and schools.
d. New Orleans, Louisiana has used Byrne JAG funds on gun violence reduction initiatives, alternatives to incarceration for municipal court, diversion programs for eligible defendants with mental illness, pre-trial and probation advocacy, domestic violence monitoring court, and technology upgrades including body cameras and audio surveillance equipment for its police force.
e. New York, New York uses Byrne JAG funds to support a wide range of programs, including efforts to improve the collection, organization and evaluation of criminal justice data, a specialized unit that investigates illegal
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hotels, building violations and illegal adult establishments, initiatives to reduce the number of people with mental and behavioral needs who cycle through the criminal justice system by connecting them with interventions and services, special programs to support the prosecution of drug sellers who traffic large quantities of narcotics, and initiatives to ensure the safety of students and reduce crime in schools. In addition, the City’s five District Attorneys use Byrne JAG funds to support many programs, including the Kings County Drug Treatment Alternative-to-Prison program, which diverts hundreds of nonviolent offenders to community-based residential drug treatment programs, and the New York County Cybercrime and Identity Theft Bureau, which protects the public and institutions from organized cybercrime and identity theft schemes.
f. Piscataway, New Jersey has used Byrne JAG funds for a variety of technology equipment, including outfitting patrol cars with mobile video recorders, a license plate recognitions system, traffic radar systems and body cameras.
g. Portland, Oregon has used Byrne JAG funds to support its New Options for Women (NOW) program, which provides services to women who have experienced sexual exploitation while working in the commercial sex industry.
h. Providence, Rhode Island uses Byrne JAG funds to pay personnel to conduct targeted enforcement patrols and to contract with Family Service of Rhode Island for the services of a part-time Bilingual Police Liaison.
i. Sacramento, California uses Byrne JAG funds to support the ongoing maintenance and operations of its Police Department’s helicopter program.
16. Many other Conference members receive Byrne JAG funds and use them for still
different, but no less critical, law enforcement purposes. These members include, as further
examples, cities as diverse as Cambridge, MA; Washington, D.C.; Denver, CO; Houston, TX;
Iowa City, IA; Menlo Park, CA; Ithaca, NY; Madison, WI; Oakland, CA; Rochester, NY; Salinas,
CA; San Jose, CA; Philadelphia, PA; Pittsburgh, PA; Santa Ana, CA; Seattle, WA; Santa Fe, NM;
Sommerville, MA; Syracuse, NY; and Tucson, AZ. They also include those member cities listed
separately on Exhibit A, and many other cities like them.2
2 The Office of Justice Programs has published additional examples of program successes in varied jurisdictions, including in additional Conference member cities. See https://www.bja.gov/SuccessStoryList.aspx (last visited October 17, 2017).
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17. Without Byrne JAG funds, the Conference’s members would have to shut down some, or all, of these programs, change their staffing, scope, or goals, or divert funds from other policing objectives to sustain them. The Conference and Its Members Have Long Promoted a Policy of Cooperation Between Local Law Enforcement and Immigrants in Their Cities.
18. The Conference’s member cities are home to immigrant populations that are both recent arrivals and multigenerational families. The Conference proudly recognizes that cities are diverse, multicultural centers, and that their diversity reflects core American values, fosters economic prosperity and opportunity, enriches cities’ cultures, and keeps our nation competitive and strong.
19. In addition, the Conference and its members recognize that immigrant populations are necessary and critical to effective local law enforcement, over which the Conference believes each individual city should have discretion and control.
20. For example, in exercising its discretion over local law enforcement policy, Conference member Chicago has made the considered judgment that devoting local resources to civil immigration enforcement would be detrimental to community safety, and that concerns for safety are best addressed by promoting a policy of cooperation between local law enforcement and immigrants. This policy judgment is codified in Chicago’s “Welcoming City Ordinance.” See Chicago Municipal Code § 2-173.
21. Many of the Conference’s other members have adopted similar policies. These include, for example, Gary, Indiana; Los Angeles, California; New York, New York; Philadelphia, Pennsylvania; and Providence, Rhode Island. 3
3 Gary -- Ordinance No. 9100; Los Angeles -- LAPD Intradepartmental Correspondence Dated July 3, 2014 (available at https://www.ilrc.org/detainer-policies);
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22. These policies are rooted in the considered judgment of each city that restricting entanglement with federal immigration enforcement will secure and enhance the community’s trust in local law enforcement, which is vital to the work of public safety in these cities. Local law enforcement relies upon all community members – regardless of immigration status – to report crimes, serve as witnesses, and assist in investigations and prosecutions. Indeed, in the experience of the Conference and many of its members, even the perception that local law enforcement is assisting in immigration enforcement can erode trust, disrupt lines of communication, and make law enforcement’s job much more difficult. The Conference Opposes Punitive “Sanctuary Jurisdiction” Policies Such as Those Challenged in this Action.
23. The Conference has for years opposed attempts by the federal government to penalize cities that adopt policies such as those cited above. In 2015, for example, the Conference opposed Senate Bill 2146, the “Stop Sanctuary Policies and Protect Americans Act,” which proposed to deny Community Development Block Grants and other federal aid to cities that adopted policies like those identified above. The Conference did so because in its estimation, shifting the federal responsibility of enforcing civil immigration law to local governments diverts critical resources from their law enforcement agencies, compromises public safety, and hinders local police department policies designed to encourage all police to work with immigrant communities to prevent and solve crimes. The Conference has continued to oppose similar legislation, none of which has passed Congress.
New York – Admin. Law N.Y. § 14-154 (available at https://www.ilrc.org/sites/default/files/resources/nyc.pdf); Philadelphia – Executive Order No. 16 (available at https://www.ilrc.org/detainer-policies); Providence – Resolution of the City Council (available at https://www.ilrc.org/sites/default/files/resources/providence_resolution.pdf).
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24. More recently, Conference members met from June 23-26, 2017 for this year’s annual meeting. The annual meeting was attended by over 250 mayors from cities across the country, including those from nearly every state and the Commonwealth of Puerto Rico. A true and correct copy of a list of mayors registered to attend the annual meeting is attached as Exhibit B to this declaration.
25. At the annual meeting, the Conference’s members adopted three resolutions recognizing the importance of immigrants to their communities, supporting immigrant rights, standing against policies that target immigrant communities and opposing the current Administration’s punitive sanctuary city policies.
26. The adoption of a resolution is the principal means by which the Conference speaks on matters of policy. Each year, the Conference shares its adopted resolutions with Congress and the President of the United States.
27. The Conference passes resolutions only after careful study and consideration. Each resolution must first be adopted by a standing committee of members devoted to considering similar issues and then be presented to the full membership in attendance at the annual meeting for consideration, debate and a vote.
28. On May 25, 2017, the mayor of Austin, Texas proposed one of three resolutions devoted to immigration matters, titled “Opposing Punitive Sanctuary Jurisdiction Policies.” This resolution was advanced by the standing committee on Criminal and Social Justice, and it was passed by the membership on June 26, 2017. A true and correct copy of this resolution is attached as Exhibit C to this declaration.
29. This resolution reflected the Conference members’ considered judgment that, among other things:
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a. Many local jurisdictions have made the determination that their local law enforcement efforts and personnel have neither the authority, the priority, nor the resources to serve as immigration enforcement officers;
b. Trust between local law enforcement and the communities they serve is critical to preventing, solving, and prosecuting crimes, and many jurisdictions have made the determination that having local law enforcement officers serve as immigration officers would break that trust;
c. Many local jurisdictions and authorities do not have the law enforcement resources to act as immigration officers at the expense of their local and state law enforcement priorities; and
d. Cities and other local government entities need to have the discretion to make individualized determinations relative to local values, expenditure of resources, priorities, and liabilities assumed, all taking into account:
i. Immigrants residing in our nation’s cities must be able to trust the police and all of city government and that their 4th Amendment rights will be guaranteed; and
ii. The efforts of local law enforcement to build trust and supportive relationships with all communities, including immigrant communities, is essential to preventing and prosecuting crime and helping victims.
(Exhibit C at 1-2.)
30. Accordingly, the Conference resolved to:
a. Urge the Administration to repeal Executive Order 13768 and its overly broad and uncertain definition of what constitutes a “sanctuary jurisdiction”;
b. Oppose punitive “sanctuary jurisdiction” policies that limit local control and discretion;
c. Urge Congress, the Administration, and states to pursue immigration enforcement policies that recognize that local law enforcement has limited resources and community trust is critical to local law enforcement and the safety of our communities;
d. Oppose federal and state policies that commandeer local law enforcement or require local authorities to (i) violate, or be placed at risk of violating, a person’s 4th Amendment rights, or (ii) Otherwise assist federal immigration authorities beyond what is determined by local policy.
(Exhibit C at 2.)
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31. The Conference and its members passed two additional resolutions urging the Administration to respect local law enforcement choices and the policy choices of cities in interacting with their immigrant communities.
32. First, on June 26, 2017, the Conference passed a resolution “Supporting Immigrants, Refugees, and Asylum Seekers and Standing Against Discriminatory or Harmful Policies that Target These Vulnerable Communities.” A true and correct copy of this resolution is attached as Exhibit D to this declaration.
33. This resolution recognized that cities across America are home to immigrant populations that are both recent arrivals and multigenerational families, that those immigrants contribute to their cities in important ways, and that the administration has nonetheless antagonized and intimidated those communities through executive orders and by threatening punitive actions against so-called “sanctuary cities” like those challenged in this action. (Ex. D at 1.) The Conference thus resolved to call on Congress to act against policies that discriminate against and target immigrants, and to oppose “the administration’s efforts to hold immigrants hostage as bargaining chips to threaten withholding federal funding from cities across the nation.” (Id.)
34. Second, on June 26, 2017, the Conference passed a resolution “Supporting Immigrant Rights.” A true and correct copy of this resolution is attached as Exhibit E to this declaration.
35. This resolution recognized that the United States has always been a nation of immigrants, that it is enriched by the diversity of immigrants, that our cities are diverse, multicultural centers that reflect core American values and that foster economic prosperity, and that data has shown that so-called “sanctuary cities” are both stronger economically and safer than other cities. (Ex. E at 1.) In addition, the resolution recognized that the federal government has
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recently sought to restrict funding to sanctuary jurisdictions, coerce and compel cities and their employees to comply with federal immigration detainer requests and to prolong the detention of suspected aliens in the custody of local law enforcement officials, and that this undermines mayors’ ability to ensure the safety of their communities by eroding trust between local law enforcement and city residents. (Id. at 1-2.) The Conference thus resolved to “call[] for an end to unconstitutional federal funding threats to states and local governments in an effort to coerce and compel them into implementing federal immigration law,” and to “urge members of Congress to withdraw legislation that attempts to cut local law enforcement funding necessary to ensure the safety of our communities.” (Id.)
36. Each of these resolutions passed with a wide majority of the Conference members present for the annual meeting. In fact, after conclusion of a vote on a proposed resolution that passes, a member mayor who attended the vote may request to be recorded as having voted “No” on that specific resolution. Only five mayors of the over 250 mayors in attendance at the annual meeting recorded such a vote as to any of these three resolutions.
37. These policies reflect the considered, collective judgment of the Conference and its members that local law enforcement should not be coerced, through the threat of defunding critical law enforcement programs, into engaging in federal civil immigration enforcement, particularly at the cost of alienating city residents and hindering the prevention and prosecution of serious, often violent, crimes. To put it simply, doing so will make cities across the country less safe. The Attorney General’s Conditions are Inconsistent with Conference Policy and the Law Enforcement Priorities of the Conference’s Members.
38. Notwithstanding the Conference and its members’ policy judgment on these critical matters affecting local law enforcement and community safety, the Department of Justice (“DOJ”) and the Attorney General have attempted to coerce the Conference’s members into agreeing to
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three conditions of receiving Byrne JAG funds for the fiscal year 2017. Under these conditions, Conference members must agree to (1) “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act;” (2) “permit personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States;” and (3) certify compliance with 8 U.S.C. § 1373, which prohibits localities from restricting officers from sharing information regarding “citizenship or immigration status” with federal authorities. (See Conference Complaint, ¶¶ 4657, Ex. E at 30.)
39. Even after the Court granted a preliminary injunction against the first two of these three conditions, the DOJ and Attorney General have continued their attempts to coerce the Conference’s members into assisting in federal immigration enforcement. On September 15, 2017, the Court granted Chicago’s motion for a preliminary injunction as to the first two of these three challenged conditions (the “notice” and “access” conditions), finding that the Attorney General lacked statutory authority to impose them on grant applicants. (See Docket (“Dkt.”) 78.) The Court denied Chicago’s motion as to the third condition (regarding Section 1373) on the basis that, while Section 1373 restricts the ability of localities to prohibit officials from assisting in a federal program, “it does not require officials to assist in the enforcement of a federal program.” (Dkt. 78 at 33 (Court’s emphasis).)
40. On October 11, 2017, the DOJ sent letters to four of the Conference’s member cities including, in addition to Chicago, New Orleans, New York and Philadelphia. True and correct copies of these letters are attached as group Exhibit F to this declaration. In the letters, DOJ makes
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clear that it will require cities and their officers to affirmatively assist in federal immigration enforcement as a condition of receiving Byrne JAG funds. DOJ does so by (1) interpreting Section 1373 to require that officers be permitted to share not just information regarding “immigration status,” but also to give advance notice of an alien, or suspected alien’s, release from custody, and (2) requiring these cities to affirmatively communicate DOJ’s interpretation of Section 1373 to each of its officers, and to certify to DOJ that it has done so.
41. By attempting to force cities to provide notice to federal immigration authorities of any suspected alien with whom local law enforcement comes into contact and unlimited access to local law enforcement facilities to conduct custodial interrogations of suspected aliens, and to affirmatively require local law enforcement officers to communicate immigration status, custody status and release dates to federal officers, the Conference submits that the Attorney General has overstepped his statutory and Constitutional authority. If permitted to continue insisting upon such conditions, the Attorney General will leave the Conference’s members with an unacceptable choice: forego federal law enforcement funds allocated to them by Congress and needed for critical local equipment, training and programming, or submit to the Attorney General’s conditions and, in doing so, jeopardize their residents’ and officers’ safety.
42. No Conference member should have to make that choice. Accordingly, I submit this declaration in support of the Conference’s motion to preliminarily enjoin the Attorney
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General from 1mposmg these unauthorized and unlawful conditions on the Conference's members.

I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true
and correct.
Executed on October 2017. ,

By:

� C,o�O�

Tom Cochran

14
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EXHIBIT A

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2017 ELECTED AND APPOINTED LEADERSHIP

Mayor

City

William A. Bell, Sr. Mark Stodola John Giles Greg Stanton Mark W. Mitchell Tom Tait Acquanetta Warren Robert Garcia Eric Garcetti Jill Techel Edwin M. Lee Sam Liccardo Miguel A. Pulido Helene Schneider Christopher L. Cabaldon Michael B. Hancock Joe Ganim Neil M. O'Leary Muriel Bowser Juan Carlos Bermudez Joy Cooper Philip Levine Oliver G. Gilbert, III Buddy Dyer Frank C. Ortis Rick Kriseman Bob Buckhorn Kasim Reed Hardie Davis, Jr. Michael Bodker

Birmingham Little Rock Mesa Phoenix Tempe Anaheim Fontana Long Beach Los Angeles Napa San Francisco San Jose Santa Ana Santa Barbara West Sacramento Denver Bridgeport Waterbury Washington Doral Hallandale Beach Miami Beach Miami Gardens Orlando Pembroke Pines St. Petersburg Tampa Atlanta Augusta Johns Creek

State
AL AR AZ AZ AZ CA CA CA CA CA CA CA CA CA CA CO CT CT DC FL FL FL FL FL FL FL FL GA GA GA

Population
212,237 193,524 457,587 1,445,632 175,826 336,265 196,069 462,257 3,792,621
76,915 805,235 945,942 324,528
88,410 48,744 600,158 144,229 110,366 646,449 45,704 38,712 87,779 109,680 238,300 154,750 244,769 335,709 420,003 200,549 76,728

Received 2017 Byrne JAG Grant Allocation? Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes No

Amount of 2017 Byrne JAG Grant Allocation
$285,149 $249,719 $161,037 $750,906
$64,191 $89,506 $57,226 $189,542 $1,555,265 $20,498 $524,845 $251,931 $102,413 $21,367 $19,885 $423,861 $165,793 $57,101 $1,444,081
$0 $17,501 $68,114 $57,303 $174,067 $22,349 $156,275 $156,954 $476,147 $30,095
$0

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page R3ecoefiv4e2dPagAemIDou#n:1t 5of221017

Mayor

City

State

2017 Byrne Byrne JAG Population JAG Grant Grant

Allocation? Allocation

Kirk Caldwell
T.M. Franklin 'Frank' Cownie

Honolulu Des Moines

HI

991,788 Yes

IA

203,433 Yes

$345,893 $142,719

Roy D. Buol

Dubuque

IA

57,637 Yes

$18,782

Chris Koos

Normal

IL

52,497 No

$0

James Brainard
Karen M. FreemanWilson

Carmel Gary

IN

79,191 No

IN

80,294 Yes

$0 $64,612

Pete Buttigieg

South Bend

IN

101,168 Yes

$65,145

Greg Fischer

Louisville

KY

741,096 Yes

$587,515

Mitchell J. Landrieu

New Orleans

LA

343,829 Yes

$269,516

Martin J. Walsh

Boston

MA

617,594 Yes

$417,809

Jon Mitchell

New Bedford

MA

95,072 Yes

$94,820

Setti D. Warren

Newton

MA

85,146 No

$0

Virgil 'Virg' Bernero

Lansing

MI

114,297 Yes

$101,260

Bryan K. Barnett

Rochester Hills

MI

70,995 No

$0

Elizabeth B. Kautz

Burnsville

MN

61,747 No

$0

Betsy Hodges

Minneapolis

MN

382,578 Yes

$497,392

Ardell F. Brede

Rochester

MN

106,769 Yes

$24,500

Sylvester 'Sly' James, Jr. Kansas City

MO

459,787 Yes

$486,100

Miles Atkins

Mooresville

NC

32,711 No

$0

J. Christian Bollwage

Elizabeth

NJ

124,969 Yes

$116,700

Ras J. Baraka

Newark

NJ

277,140 Yes

$327,993

Brian C. Wahler

Piscataway

NJ

56,044 No

$0

Richard J. Berry

Albuquerque

NM

545,852 Yes

$438,097

Kenneth D. Miyagishima Las Cruces

NM

97,618 Yes

$26,737

Javier Gonzales

Santa Fe

NM

67,947 Yes

$18,313

Carolyn G. Goodman

Las Vegas

NV

583,756 Yes

$985,128

Hillary Schieve

Reno

NV

225,221 Yes

$94,859

Bill de Blasio

New York

NY

8,175,133 Yes

$4,120,447

Stephanie A. Miner

Syracuse

NY

145,170 Yes

$94,398

Nan Whaley

Dayton

OH

141,359 Yes

$128,391

Lydia L. Mihalik

Findlay

OH

41,202 No

$0

David J. Berger

Lima

OH

38,771 Yes

$35,886

Mick Cornett

Oklahoma City

OK

579,999 Yes

$429,823

Denny Doyle

Beaverton

OR

89,803 Yes

$13,700

Shane T. Bemis

Gresham

OR

105,594 Yes

$63,620

Ed Pawlowski

Allentown

PA

118,032 Yes

$57,398

William Peduto

Pittsburgh

PA

305,704 Yes

$223,896

Jorge O. Elorza

Providence

RI

178,042 Yes

$212,112

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page R4ecoefiv4e2dPagAemIDou#n:1t 5of222017

Mayor

City

State

2017 Byrne Byrne JAG Population JAG Grant Grant

Allocation? Allocation

Steve Benjamin

Columbia

SC

129,272 Yes

$79,773

Joseph T. McElveen, Jr. Sumter

SC

40,524 No

$0

Kim McMillan

Clarksville

TN

132,929 Yes

$60,049

Madeline Anne Rogero Knoxville

TN

178,874 Yes

$111,480

Steve Adler

Austin

TX

790,390 Yes

$261,879

Mike Rawlings

Dallas

TX

1,197,816 Yes

$662,975

Chris Watts

Denton

TX

113,383 Yes

$25,004

Sylvester Turner

Houston

TX

2,099,451 Yes

$1,668,542

Harry LaRosiliere

Plano

TX

259,841 Yes

$33,450

Jackie Biskupski

Salt Lake City

UT

186,440 Yes

$212,841

Marilyn Strickland

Tacoma

WA

198,397 Yes

$175,075

James J. Schmitt

Green Bay

WI

104,057 Yes

$50,944

Paul R. Soglin

Madison

WI

233,209 Yes

$91,240

Total

$21,529,934

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page 5 of 42 PageID #:1523
EXHIBIT B

10/17/2017 Case: 1:17-cv-05720 Document #85:th1A0n9nu-2al MFeileetindg:O1n0lin/e2R3e/g1is7traPtioange 6 of 42 PageID #:1524
0 TH[ UNITED STATES CONFERENCE OF MAYORS

/ '':.:· 0\

.,,

--

0

? . , -~- ~

·J11,;~1,Hl0 il(J-~./,
i OI J

THE UNITED STATES CONFERENCE OF MAYORS
85TH ANNUAL MEETING
June 23-26, 2017 in Miami Beach, FL

Attending Mayors
254 mayors have registered.

Alabama
Bessemer
I Kenneth E. Gulley View Profile

Birmingham
I William A. Bell, Sr. View Profile

Fairhope Karin Wilson
View Profile f

Tuscaloosa
I Walter Maddox View Profile

Buckeve
I Jackie A. Meck View Profile
Arkansas
Little Rock
I Mark Stodola View Profile

Mesa John Giles
View Profile J

Tempe
I Mark W. Mitchell View Profile

North Little Rock
I Joe A. Smith View Profile

Pine Bluff
I Shirley Washington View Profile

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1/18

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Alhambra David Mejia
Mayor Elect

Anaheim
I Tom Tait View Profile

Bell
I Fidencio Joel Gallardo View Profile

Beverly HIiis
I Lili Bosse View Profile

Culver City
I Jeffrey Cooper View Profile

Dublin
I David G. Haubert View Profile

Elk Grove
I Steve Ly View Profile

Fontana
I Acquanetta Warren View Profile

Livermore
I John P. Marchand View Profile

Long Beach Robert Garcia
j View Profile
MIipitas
I Rich Tran View Profile
Moreno Valley
I Dr. Yxstian Gutierrez View Profile

Los Angeles
I Eric Garcetti View Profile
Montebello
I Vivian Romero View Profile
Napa
I Jll!Teche l View Profile

Menlo Park
l Kirsten Keith View Profile
Monterey Park Teresa Real Sebastian,
l J.D. View Profile
Newport Beach
I Kevin Muldoon View Profile

Rancho Cordova
Donald Terry
1 View Profile

Sacramento
I Darrell Steinberg View Profile

San Bernardino
l R. Carey Davis View Profile

San Francisco
I Edwin M. Lee View Profile

San Jacinto
I Scott Miller View Profile

Santa Clarita

Stockton

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San Leandro Pauline Russo Cutter
j View Profile
Torrance

2/18

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I Cameron Smyth View Profile

I Michael D. Tubbs
~.,..,..._. View Profile

I Patrick J. Furey View Profile

Turlock Gary Soiseth
j View Profile
West Sacramento Christopher L.
I Cabaldon View Profile

Union City
I Carol Dutra-Vernaci View Profile

Walnut Eric Ching

Mayor Elect

Aurora Steve Hogan
View Profile j
Connecticut
Bridgeport
I Joe Ganim View Profile
Vernon
I Daniel A. Champagne View Profile

Denver
I Michael B. Hancock View Profile
New Haven Toni Harp
View Profile [
Waterbury Neil M. O'Leary
View Profile j

Thornton
I Heidi K. Williams View Profile
Stratford
I John Harkins View Profile

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3/18

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Apopka
l Joe Kilsheimer View Profile

Aventura
I Enid Weisman View Profile

Bal Harbour Village
I Gabriel Groisman View Profile

Boca Raton
I Susan Haynie View Profile

Bonita Springs
I Peter Simmons View Profile

Cape Coral
I Marni L. Sawicki View Profile

Cooper City
I Greg Ross View Profile
Doral Juan Carlos Bermudez
View Profile !
Lakeland Howard Wiggs
View Profile!

Coral Springs
I Walter 'Skip' Campbell View Profile
Fort Myers Randall P. Henderson,
! Jr. View Profile
Largo Louis L. 'Woody' Brown
View Profile !

Daytona Beach
I Derrick L. Henry View Profile
Hollywood Josh Levy
I View Profile
Lauderdale Lakes
I Hazelle Rogers View Profile

Miami
I Tomas p, Regalado View Prome

Miami Beach
I Philip Levine View Profile

Miami Gardens
I Oliver G. Gilbert, III View Profile

Miramar
I Wayne M. Messam View Profile

North Miami Dr. Smith Joseph
View Profile !

North Miami Beach
I George Vallejo View Profile

North Port
I Linda Yates View Profile

Ocala
I Kent Guinn View Profile

Palm Bay

Palm Coast

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Orlando
I Buddy Dyer View Profile
Parkland

4/18

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I William Capote View Profile

I Milissa Holland View Profile

Christine Hunschofsky
j View Profile

Pembroke Pines
I Frank C. Ortis View Profile
Port St. Lucie
I Gregory J. Oravec View Profile
Tallahassee
I Andrew D. Gillum View Profile
Virginia Gardens Fred Deno
Georgia
Atlanta Kasim Reed
j View Profile
Fairburn Mario B. Avery
View Profile [

Pensacola
I Ashton J, Hayward View Profile
St. Petersburg Rick Kriseman
j View Profile
Tampa
I Bob Buckh orn View Profile
West Palm Beach Gerald ine 'Jeri' Muoio, Ph.D.
j View Profile

Pinellas Park Sandra Lee 'Sandy' Bradbury
View Profile j
Sunrise
I Michael J. Ryan View Profile
Vero Be ach Laura Moss
View Profile j
Winter Haven Steven M. Hunnicutt
j View Profile

Augusta
! Hardie Davis, Jr. View Profile

East Point
I Jannquell Peters View Profile

http :/ / l e g a c y.u s m a y o r s .o r g / 8 5 t h A n n u a l M e e t i n g / p r e r e g i s t e r e d m a y o r s p h o t o s .asp

5/18

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Honolulu
I Kirk Caldwell
. View Profile

Illinois
Addison
I Rich Veerlstra View Profile
r Evanston ! Stephen H. Hagerty View Profile

Bloomington
! Tari Renner View Profile
Hanover Park
I Rodney S. Craig View Profile

Decatur
I Julie Moore-Wolfe View Profile
Hoffman Estates
I William D. 'Bill' McLeod View Profile

Lake Barrington
I Kevin C. Richardson View Profile

Normal
I Chris Koos View Profile

North Chicago
I Leon Rockingham, Jr. View Profile

Quincy
! Kyle A. Moore View Profile

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6/18

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Anderson Thomas Broderick, Jr.
j View Profile

Bloomington
I John Hamilton View Profile

Carmel
James Brainard
j View Profile

Fort Wayne Thomas C. 'Tom'
! Henry View Profile

Gary Karen M. Freeman-
I Wilson View Profile

Greenwood
I Mark W. Myers View Profile

New Albany
l Jeff M. Gahan View Profile

South Bend
I Pete Buttlgieg View Profile

Des Moines T.M. Franklin 'Frank'
Cownie
j View Profile

,,,,Kansas

~ .
.

Olathe
I Michael Copeland View Profile

'1

Louisville
I Greg Fischer View Profile

Dubuque
I Roy D. Buol View Profile
Wichita Jeff Longwell
View Profile f
Somerset Edward R. Girdler
j View Profile

Waterloo
I Quentin M. Hart View Profile

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7/18

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Alexandria
I Jacques Maurice Roy View Profile

Baton Rouge Sharon Weston
I Broome View Profile

Monroe
I James E. 'Jamie' M~yo View Profile

New Orleans
I Mitchell J. Landrieu
· View Profile

Ville Platte
I Jennifer Vidrine View Profile

Maryland
Baltimore
I Catherine E. Pugh View Profile

College Park
I Patrick L. Wojahn View Profile

Attleboro
I Kevin Dumas View Profile

Boston
I Martin J. Walsh View Profile

Cambridge
I E. Denise Simmons View Profile

Chicopee
I Richard J. Kos View Profile

Fall River
I Jasiel F. Correla, II View Profile

- - ..""I!(,,-- ~ New Bedford
I Jon Mitchell View Profile

Brockton Bill Carpenter
j View Profile
Everett
I Carlo DeMaria, Jr. View Profile

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8/18

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Flint
I Dr. Karen Weaver View Profile

Holland
! Nancy DeBoer View Profile

Lansing
! Virgil 'Virg' Bernero View Profile

Pontiac
I Deirdre Waterman View Profile
Minnesota
Brooklyn Center
I Tim Willson View Profile

Rochester Hills
I Bryan K. Barnett View Profile
Burnsville
! Elizabeth B. Kautz View Profile

Edina
I James B. Hovland View Profile

Woodbury
I Mary Giuliani Stephens View Prome

Biloxi
I Andrew 'FoFo' Gilich View Profile
Missouri
Independence
I Eileen Weir
· View Profile

Gulfport
I Billy Hewes View Profile

Hattiesburg Johnny DuPree
Mayor Elect

Kansas City Sylvester 'Sly' James, Jr.
I View Profile

St. Louis
I Lyda Krew son View Profile

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9/18

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Las Vegas
I Carolyn G. Goodman View Profile

Reno
I Hillary Schieve View Profile

Nashua
I Jim Donchess View Profile
New Jersey
Atlantic City
I Donald A. Guardian
· View Profile
Gloucester Township
I David R. Mayer View Profile
Lambertville
I David Delvecchio
. View Profile
Piscataway
I Brian C. Wahler View Profile

East Orange
I Lester E. Taylor, III View Profile
Hope Timothy C. McDonough
View Profile !
Millstone Borough Raymond Heck
Plainfield
I Adrian O. Mapp View Profile

Elizabeth
I J. Christian Bollwage View Profile
Kearny Alberto G. Santos
View Profile!
Newark
I Ras J. Baraka View Profile
Pleasantville Jesse L. Tweedle, Sr
View Profile !

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10/18

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Albuquerque
I Richard J. Berry View Profile

Las Cruces Kenneth D. Miyagishima
j View Profile

Santa Fe
I Javier Gonzales View Profile

Binghamton Richard C. David
View Profile!
Mount Vernon
I Richard Thomas View Profile
Schenectady
I Gary R. McCarthy
: View Profile

Freeport
I Robert T. Kennedy View Profile
New York
I Bill de Blasio View Profile

Ithaca
I Svante L. Myrick View Profile
Niagara Falls
I Paul A. Oyster View Profile

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11/18

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Charlotte
I Jennifer W. Roberts
. View Profile

Concord
I J. Scott Padgett View Profile

Durham
l William V. 'Bill' Bell View Profile

Fayetteville
I Nat Robertson View Profile

Greenville Allen Thomas
Mayor Elect

North Wilkesboro
I Robert L. Johnson
• View Profile

Raleigh
I Nancy Mcfarlane View Profile

Mooresville
I Miles Atkins View Profile
Wilmington
I Bill Saffo View Profile

Winston-Salem
I James Allen Joines View Profile
North Dakota
Grand Forks Michael R. Brown,
I M.D. View Pr~file

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12/18

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Dayton
I Nan Whaley View Profile

Findlay
I Lydia L. Mihalik ViewProftle

Kettering Don Patterson
View Profile!

Lima
I David J. Berger Vi ew Profile
Warren
I William 'Doug' Franklin View Profile

Toledo
I Paula Hicks-Hudson View Profile
Warrensville Heights
I Bradley D. Sellers View Profile

Trotwood
I Mary Ann McDonald View Profile
Westlake Dennis M. Clough
I View Profile

Woodmere Charles Smith

Broken Arrow
I Cra ig Thurmond
, View Profile

Oklahoma City
I Mick Cornett View Profile

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13/18

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Beaverton
I Denny Doyle View Profile

Gresham
I Shane T. Bemis View Profile

Hillsboro Steve Call away
j View Profile

Oregon City
I Dan Holladay View Profile

Portland
I Ted Wheeler View Profile

Tigard Jo hn L. Cook
View Profile !

Tualatin Lou Ogden

Allentown
I Ed Pawlowski View Profile

Philadelphia
I Jim Kenney View Profile

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14/18

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Arecibo Carlos Molina-
I Rodriguez View Profile

Barranquitas Francisco Lopez Lopez
Mayor Elect

Camuy
! Edwin Garcfa Feliciano View Profile

Can6vanas Lornna Soto Villanueva
Mayor Elect
Las Piedras
I Miguel A. Lopez Rivera View Profile

Ceiba Angelo Cruz Ramos
Naguabo Noe Rivera

Fajardo
I Anfbal Melendez Rivera View Profile
Ponce Dr. Marfa E. Melendez
I Altieri View Profile

Utuado
I Ernesto Irizarry Salva View Profile

Rhode Island
Central Falls
I James A. Diossa View Profile

Providence
I Jorge o. Elorza View Profile

Cayce Elise Partin
Springdale Michael Bishop

Columbia
I Steve Benjamin View Profile
Sumter Joseph T. McElveen, Jr.
I View Profile

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Myrtle Beach
I John T. Rhodes View Profile
15/18

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Chattanooga
I Andy Berke View Profile

Clarksville
I Kim McMillan View Profile

Knoxville
I Madeline Anne Rogero View Profile

Texas
Arlington
I Jeff Williams View Profile
Brownsville Antonio 'Tony'
I Martinez View Profile
Dallas
I Mike Rawlings View Profile

Austin
I Steve Ad ler View Profile
Bryan
! Andrew Nelson View Profile.
Denton
l Chris Watts View Profile

Beaumont
I Becky Ames View Profile
College Station
I Karl Mooney View Profile
Eagle Pass Ramsey English Cantu
View Profile [

Garland
I Doug las Athas View Profile

Houston
I Sylvester Turner View Profile

Killeen Jose L. Segarra
j View Profile

McKinney
I George Fuller View Profile

Plano Harry LaRosiliere
j View Profile

Port Arthur Derrick Ford Freeman
j View Profile

San Antonio
I Ron Nirenberg View Profile

San Marcos John Thomaides
View Profile [

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16/18

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Salt Lake City
I Jackie Biskupski View Profile

Alexandria
I Allison Silberberg
; View Profile
Richmond
I Levar Stoney Vl1c1w Profile
Washington
Tukwila Allan Ekberg
View Profile J

Charlottesville
I Mike Signer View Profile

Newport News
I McKinley L. Price, DDS View Profile

Huntington
l Steve WIiiiams VlewProme

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17/18

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Brookfield Steven V. 'Steve' Ponto
View Profile [

Green Bay
I James J. Schmitt View Profile

Madison
I Paul R. Soglin View Profile

Racine John Dickert
Mayor Elect
Wyoming
Casper
I Kenyne Humphrey View Profile

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18/18

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page 24 of 42 PageID #:1542
EXHIBIT C

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page 25 of 42 PageID #:1543
Adopted June 26, 2017
OPPOSING PUNITIVE SANCTUARY JURISDICTION POLICIES
WHEREAS, many local jurisdictions have made the determination that their local law enforcement efforts and personnel have neither the authority, the priority, nor the resources to serve as immigration enforcement officers; and
WHEREAS, trust between local law enforcement and the communities they serve is critical to preventing, solving, and prosecuting crimes, and many jurisdictions have made the determination that having local law enforcement officers serve as immigration officers would break that trust; and
WHEREAS, local authorities cannot detain a person on the basis of an ICE warrantless or other civil detainer without exposing themselves to lawsuits under the 4th Amendment to the Constitution; and
WHEREAS, many local jurisdictions and authorities do not have the law enforcement resources to act as immigration officers at the expense of their local and state law enforcement priorities; and WHEREAS, the 10th Amendment to the Constitution puts limits on the federal commandeering of state and local law enforcement personnel and resources; and
WHEREAS, President Trump issued Executive Order 13768, Enhancing Public Safety in the Interior of the United States, on January 25, 2017; and
WHEREAS, the Executive Order defines a sanctuary jurisdiction as one that does not comply with 8 U.S.C. 1373 or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of unspecified federal laws; and
WHEREAS, this definition for what constitutes a sanctuary jurisdiction,' subject to potential sanctions, is imprecise and susceptible to an ever increasingly broad definition; and
WHEREAS, Attorney General Jeff Sessions has recently issued a memorandum that indicates that while this definition of sanctuary jurisdiction currently only relates to willful violations of 8 USC §1373, but that the Administration also reserves the ability to broaden the definition and application of such jurisdictions; and

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WHEREAS, the Appendix to the President's recently submitted FY18 Budget contains proposed legislation that would explicitly and statutorily broaden the application of the definition of sanctuary jurisdictions to include jurisdictions that did not comply with warrantless and civil detainer requests among other presently voluntary activity related to immigration enforcement; and
WHEREAS, several bills have been introduced in Congress that call for a punitive, sanctuary jurisdiction approach to local governments that do not act as immigration agents; and
WHEREAS, states, including Texas, have passed or are considering legislation that would compel cities and other local entities to act as immigration agents; and
WHEREAS, courts have ruled that immigration policy is a federal matter and that the states should refrain from setting immigration enforcement policy; and
WHEREAS, state lawmaking regarding immigration enforcement has and could lead to conflicting mandates for cities and local officials; and
WHEREAS, The United States Conference of Mayors recognizes that immigrants bring significant social, economic, and cultural benefits to communities nationwide, and mayors in cities big and small foster welcoming and secure cities for all residents, regardless of who they are or where they come from; and
WHEREAS, cities and other local government entities need to have the discretion to make individualized determinations relative to local values, expenditure of resources, priorities, and liabilities assumed, all taking into account that:
§ Immigrants residing in our nation's cities must be able to trust the police and all of city government and that their 4th Amendment rights will be guaranteed; and
§ The efforts of local law enforcement to build trust and supportive relationships with all communities, including immigrant communities, is essential to preventing and prosecuting crime and helping victims;
NOW, THEREFORE, BE IT RESOLVED that The United States Conference of Mayors:
§ Urges the Administration to repeal Executive Order 13768 and its overly broad and uncertain definition of what constitutes a sanctuary jurisdiction; and
§ Opposes punitive sanctuary jurisdiction' policies that limit local control and discretion, and
§ Urges Congress, the Administration, and the states to pursue immigration enforcement policies that recognize that local law enforcement has limited resources and community trust is critical to local law enforcement and the safety of our communities; and

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BE IT FURTHER RESOLVED that The United States Conference of Mayors opposes federal and state policies that commandeer local law enforcement or require local authorities to:
§ Violate, or be placed at risk of violating, a person's 4th Amendment rights;
§ Expend limited resources to act as immigration agents; or
§ Otherwise assist federal immigration authorities beyond what is determined by local policy; and
BE IT FURTHER RESOLVED that The United States Conference of Mayors opposes state legislation and policies regarding immigration enforcement that are more harsh than federal law, especially those that place conflicting mandates on local government.

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EXHIBIT D

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Adopted June 26, 2017
SUPPORTING IMMIGRANTS, REFUGEES AND ASYLUM SEEKERS AND STANDING AGAINST DISCRIMINATORY AND HARMFUL POLICIES THAT
TARGET THESE VULNERABLE COMMUNITIES
WHEREAS, America is recognized as a nation of immigrants; and
WHEREAS, as of 2015 America's immigrant population numbered 43.3 million people, or 13.5 percent of the total population; and
WHEREAS, in 2016 immigrants and their U.S. born children were estimated to number approximately 84.3 million people, or 27 percent of the overall U.S. population; and
WHEREAS, New York City, home to one of the nation's largest and most diverse immigrant communities, has an almost 40 percent foreign born population; increasing to an estimated 60 percent when including children of immigrants; and
WHEREAS, cities across America are home to immigrant populations that are both recent arrivals and multigenerational families who contribute to the local economy as consumers, business owners, laborers and job producers; and
WHEREAS, the Administration has demonstrated an ongoing antagonistic and intimidating temperament towards immigrant, refugee and asylum seeking communities; and
WHEREAS, this posture has been asserted through the issuing of executive orders seeking to impose stricter requirements on immigrant populations and hindering or blocking entirely the entry of immigrants from certain countries; and
WHEREAS, the Administration has further affirmed this position through the threatening of punitive actions against so called 'sanctuary cities; and
WHEREAS, the moniker “sanctuary cities” is an arbitrary term which has been utilized to demonize cities and threaten their critically needed federal funding streams,
NOW, THEREFORE, BE IT RESOLVED, The United States Conference of Mayors calls on Congress to take action to stand against policies that discriminate against and target immigrants, refugees and asylum seekers; and

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BE IT FURTHER RESOLVED, that the Conference of Mayors opposes the Administration's efforts to hold immigrants hostage as bargaining chips to threaten withholding federal funding from cities across the nation.

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EXHIBIT E

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Adopted June 26, 2017
SUPPORTING IMMIGRANT RIGHTS
WHEREAS, the United States has always been a country of immigrants, founded by immigrants, and enriched by a diversity of immigrants -- many of whom have come to the United States to escape religious persecution, war, genocide, and tyranny in hopes of sharing in freedom and prosperity through hard work; and
WHEREAS, The United States Conference of Mayors proudly recognizes our cities are diverse, multicultural centers that reflect core American values that foster economic prosperity and opportunity, and that our diversity keeps us competitive and makes America strong; and
WHEREAS, data have shown that economies are stronger in sanctuary cities from higher median household income, less poverty, and less reliance on public assistance to higher labor force participation, higher employment-to-population ratios, and lower unemployment; and
WHEREAS, data also show that sanctuary cities are safer cities - data indicate that crime is statistically significantly lower in sanctuary counties in large central metro counties, small metro counties, micropolitan counties, and noncore, rural counties; and
WHEREAS, legislation has been introduced to restrict economic development, transportation, and law enforcement funding to local governments; to indemnify unconstitutional detentions; and to further criminalize immigration and restrict immigrant's rights; and
WHEREAS, the Administration has enacted Executive Orders that ban travel and refugee programs from certain countries, that restrict federal funding to sanctuary jurisdictions, and that increase immigrant raids, detentions, and deportations; and
WHEREAS, our country was founded on the principle of federalism, where the federal government cannot compel or commandeer states and local governments into implementing or enforcing federal laws, including federal immigration law; and
WHEREAS, the federal government cannot compel states, counties, cities, or their employees to comply with federal immigration detainer requests, which have been repeatedly held, by both federal courts and executive agencies, to be voluntary and nonbinding; and

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WHEREAS, prolonged detention after an otherwise authorized release order, constitutes another arrest, and consequently a violation of the Fourth Amendment if not done pursuant to a probable cause or a valid warrant; and
WHEREAS, prolonged detentions in violation of the Fourth Amendment have repeatedly resulted in the detention and eventual deportation of both United States citizens and lawful immigrants; and
WHEREAS, mayors must ensure the safety of our communities, and consequently operate in a way that allows law enforcement to do its job; and
WHEREAS, immigration is a federal responsibility and cities should not be coerced or compelled into becoming the deportation arm of the federal government; and
WHEREAS, The United States Conference of Mayors recognizes that effective policing requires the cooperation and trust of all members of the community; when state and local officials are viewed as a threat or confused with federal immigration officers, that trust is undermined; and that by withholding critical funding and penalizing local jurisdictions for doing what we know will better protect our communities will only make these communities less safe,
NOW, THEREFORE, BE IT RESOLVED, mayors call for an end to unconstitutional federal funding threats to states and local governments in an effort to coerce and compel them into implementing federal immigration law and for the unlawful issuance of immigration detainer requests without probable cause and a warrant; and
BE IT FURTHER RESOLVED, mayors urge members of Congress to withdraw legislation that attempts to cut local law enforcement funding necessary to ensure the safety of our communities, indemnify conduct that violates the constitutional rights afforded to both United States citizens and immigrant populations, and further criminalizes immigration and infringes on the rights of immigrants; and
BE IT FURTHER RESOLVED, mayors urge Democratic and Republicans leaders in Congress to pass comprehensive bipartisan immigration reform, including create a pathway to citizenship for undocumented immigrants.

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EXHIBIT F

Case: 1:17-cv-05720 Document #: 109-2 Filed: 10/23/17 Page 35 of 42 PageID #:1553
U.S. Department of Justice
Office of Justice Programs
_________________________________________________________________________
Washington, D.C. 20531
October 11, 2017
The Honorable Jim Kenney City of Philadelphia 1401 JFK Blvd., Room 1430 Philadelphia, PA 19102-1687
Dear Mayor Kenney,
Your FY 2016 Byrne JAG grant award, required you to comply with 8 U.S.C. § 1373; to undertake a review to validate your jurisdiction’s compliance with 8 U.S.C. § 1373; and to submit documentation, including an official legal opinion from counsel, adequately supporting the validation. Thank you for your recent submission. The Department of Justice has reviewed your submission, all attached documentation, and your jurisdiction’s laws, policies, and practices relating to compliance with section 1373, to the extent they were provided or are readily available.
This letter is to inform you that, based on a preliminary review, the Department has determined that your jurisdiction appears to have laws, policies, or practices that violate 8 U.S.C. § 1373. These laws, policies, or practices include, but may not be limited to:
 Executive Order No. 5-16. Section 1 of the Executive Order states that notice of a person’s release from custody shall not be provided, “unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant.”1 The Department has determined that this section restricts the sharing of information regarding immigration status in violation of 8 U.S.C. § 1373(a).
 Police Commissioner Memorandum No. 01-06. Section III.C of the Memorandum states that “immigrants who are victims of crimes will not have their status as an immigrant transmitted in any manner.” The Department has determined that this Memorandum restricts the sharing of information regarding immigration status in violation of 8 U.S.C.
1An ICE detainer form ordinarily requests that a jurisdiction (1) provide advance notice of the alien’s release; and (2) maintain custody of the alien for up to 48 hours beyond the scheduled time of release. The Department is not relying on Philadelphia’s restriction of the latter form of cooperation in this preliminary assessment.

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§ 1373(a). It is not the Department of Justice’s nor the Department of Homeland Security’s policy or practice to request information from state and local jurisdictions regarding the immigration status of victims. There are, however, instances where the Department finds that requesting this information could be appropriate, such as where a person is both a perpetrator and a victim.
Additionally, based on this preliminary review, the Department has noted that the following laws, policies or practices may violate 8 U.S.C. § 1373, depending on how your jurisdiction interprets and applies them. These laws, policies, or practices include, but may not be limited to:
 Executive Order No. 8-09. Section 2(b) of the Executive Order states that police officers “shall not . . . inquire about a person’s immigration status,” unless certain limited exceptions apply. Under 8 U.S.C. § 1373(b)(1), however, Philadelphia may not “in any way restrict” the “requesting” of “information regarding . . . immigration status” from federal immigration officers. On its face, the Department has determined that the Executive Order appears to bar Philadelphia officers from requesting information regarding immigration status from federal immigration officers. In order to comply with 8 U.S.C. § 1373, the Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order to not restrict Philadelphia officers and employees from requesting information regarding immigration status from federal immigration officers. The Department is thus requesting Philadelphia to certify that it has communicated this interpretation to its officers and employees. If Philadelphia cannot provide this certification, the Department has determined that this provision violates section 1373(b).
 Executive Order No. 8-09. Section 3 of the Executive Order states that Philadelphia officers and employees “shall [not] disclose” information “relating to an individual’s immigration status.” Section 3(b)(2), however, allows disclosure when “required by law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order to not restrict Philadelphia officers from sharing information regarding immigration status with federal immigration officers. The Department has also determined that Philadelphia would need to certify that it has communicated this interpretation to its officers and employees. If Philadelphia cannot provide this certification, the Department has determined that this provision violates section 1373(a).
 Police Commissioner Memorandum No. 01-06. Section III.A of the Memorandum states that officers shall not transmit “information relating to an immigrant” unless “required by law” or certain other exceptions apply. In order to comply with 8 U.S.C. § 1373, the Department has determined that Philadelphia would need to certify that it interprets and applies this policy to not restrict Philadelphia officers and employees from sharing
2

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information regarding immigration status with federal immigration officers. The Department has also determined that Philadelphia would need to certify that it has communicated this interpretation to its officers and employees. If Philadelphia cannot provide this certification, the Department has determined that this provision violates section 1373(a). Your jurisdiction may submit a response to this preliminary assessment, as well as any additional evidence you would like the Department to consider, before it reaches its final determination. Please submit all additional documentation by October 27, 2017. Once the Department has had an opportunity to review your submission, the Department will notify you of its final determination. This letter reflects the Department’s preliminary assessment of your jurisdiction’s compliance with 8 U.S.C. § 1373. This letter does not constitute final agency action and nothing in this letter creates any right or benefit enforceable at law against the United States. Additionally, as the United States continues to collect information about your jurisdiction, it reserves the right to identify additional bases of potential violations of 8 U.S.C. § 1373.
Sincerely,
Alan Hanson Acting Assistant Attorney General
3

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U.S. Department of Justice
Office of Justice Programs
_________________________________________________________________________
Washington, D.C. 20531
October 11, 2017
Elizabeth Glazer Director New York City Mayor’s Office of Criminal Justice 1 Centre Street, Room 1012N New York, NY 10007-1602
Dear Ms. Glazer,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373; to undertake a review to validate your jurisdiction’s compliance with 8 U.S.C. § 1373; and to submit documentation, including an official legal opinion from counsel, adequately supporting the validation. Thank you for your recent submission. The Department of Justice has reviewed your submission, all attached documentation, and your jurisdiction’s laws, policies, and practices relating to compliance with section 1373, to the extent they were provided or are readily available.
This letter is to inform you that, based on a preliminary review, the Department has determined that your jurisdiction appears to have laws, policies, or practices that violate 8 U.S.C. § 1373. These laws, policies, or practices include, but may not be limited to:
 Executive Order No. 41. Section 4 of the Executive Order states that police officers “shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.” Under 8 U.S.C. § 1373(b)(1), however, New York may not “in any way restrict” the “requesting” of “information regarding . . . immigration status” from federal immigration officers. On its face, the Department has determined that the Executive Order appears to bar New York officers from requesting information regarding immigration status from federal immigration officers. In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies this section to not restrict New York officers and employees from requesting information regarding immigration status from federal immigration officers. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(b).

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 Executive Order No. 41. Section 2 of the Executive Order states that New York officers and employees “shall [not] disclose confidential information,” which is defined to include “immigration status.” Section 2(b) and (e) contain a few exceptions, including when “disclosure is required by law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies this Order to not restrict New York officers and employees from sharing information regarding immigration status with federal immigration officers. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a).
 New York Administrative Code § 9-131. Section 9-131(b) states that New York City Department of Corrections may not “honor a civil immigration detainer . . . by notifying federal immigration authorities of [a] person’s release,” except in certain limited circumstances.1 Section 9-131(d) states that this law shall not be construed to “prohibit any city agency from cooperating with federal immigration authorities when required under federal law.” It also states that this law shall not be construed to “create any . . . duty or obligation in conflict with any federal . . . law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and (d) to not restrict New York officers from sharing information regarding immigration status with federal immigration officers, including information regarding the date and time of an alien’s release from custody. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a).
 New York Administrative Code § 9-131. Section 9-131(h)(1) states that New York City Department of Corrections personnel shall not “expend time while on duty or department resources . . . in response to federal immigration inquiries or in communicating with federal immigration authorities regarding any person’s incarceration status, release dates, court appearance dates, or any other information related to persons in the department’s custody, other than information related to a person’s citizenship or immigration status,” except where certain exceptions apply. As discussed above, section 9-131(d) states that this law shall not be construed to “prohibit any city agency from cooperating with federal immigration authorities when required under federal law.” It also states that this law
1 An ICE detainer form ordinarily requests that a jurisdiction (1) provide advance notice of the alien’s release; and (2) maintain custody of the alien for up to 48 hours beyond the scheduled time of release. The Department is not relying on New York’s restriction of the latter form of cooperation in this preliminary assessment.
2

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shall not be construed to “create any . . . duty or obligation in conflict with any federal . . . law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(h) and (d) to not restrict New York officers from sharing information regarding immigration status with federal immigration officers, including information regarding an alien’s incarceration status and release date and time. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a). Your jurisdiction may submit a response to this preliminary assessment, as well as any additional evidence you would like the Department to consider, before it reaches its final determination. Please submit all additional documentation by October 27, 2017. Once the Department has had an opportunity to review your submission, the Department will notify you of its final determination. This letter reflects the Department’s preliminary assessment of your jurisdiction’s compliance with 8 U.S.C. § 1373. This letter does not constitute final agency action and nothing in this letter creates any right or benefit enforceable at law against the United States. Additionally, as the United States continues to collect information about your jurisdiction, it reserves the right to identify additional bases of potential violations of 8 U.S.C. § 1373.
Sincerely,
Alan Hanson Acting Assistant Attorney General
3

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U.S. Department of Justice
Office of Justice Programs
_________________________________________________________________________
Washington, D.C. 20531
October 11, 2017
The Honorable Mitchell Landrieu City of New Orleans Criminal Justice Coordination 1300 Perdido Street, Room 8E15 New Orleans, LA 70112-2112
Dear Mayor Mitchell Landrieu,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373; to undertake a review to validate your jurisdiction’s compliance with 8 U.S.C. § 1373; and to submit documentation, including an official legal opinion from counsel, adequately supporting the validation. Thank you for your recent submission. The Department of Justice has reviewed your submission, all attached documentation, and your jurisdiction’s laws, policies, and practices relating to compliance with section 1373, to the extent they were provided or are readily available.
This letter is to inform you that, based on a preliminary review, the Department has determined that the following laws policies, or practices may violate 8 U.S.C. § 1373, depending on how your jurisdiction interprets and applies them. These laws, policies, or practices include, but may not be limited to:
 New Orleans Police Department Operations Manual Chapter 41:6:1. Section 3 of the Operations Manual states that police officers “shall not make inquiries into an individual’s immigration status, except as authorized by this Chapter.” Under 8 U.S.C. § 1373(b)(1), however, New Orleans may not “in any way restrict” the “requesting” of “information regarding . . . immigration status” from federal immigration officers. On its face, the Department has determined that this section appears to bar New Orleans officers from requesting information regarding immigration status from federal immigration officers. In order to comply with 8 U.S.C. § 1373, the Department has determined that New Orleans would need to certify that it interprets and applies this section to not restrict New Orleans officers and employees from requesting information regarding immigration status from federal immigration officers. The Department has also determined that New Orleans would need to certify that it has

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communicated this interpretation to its officers and employees. If New Orleans cannot provide this certification, the Department has determined that this provision violates section 1373(b).1
Your jurisdiction may submit a response to this preliminary assessment, as well as any additional evidence you would like the Department to consider, before it reaches its final determination. Please submit all additional documentation by October 27, 2017. Once the Department has had an opportunity to review your submission, the Department will notify you of its final determination.
This letter reflects the Department’s preliminary assessment of your jurisdiction’s compliance with 8 U.S.C. § 1373. This letter does not constitute final agency action and nothing in this letter creates any right or benefit enforceable at law against the United States. Additionally, as the United States continues to collect information about your jurisdiction, it reserves the right to identify additional bases of potential violations of 8 U.S.C. § 1373.
Sincerely,
Alan Hanson Acting Assistant Attorney General
1 To the extent this policy was adopted in response to the consent decree entered into between the United States and the City of New Orleans, the consent decree should not be read to require any policy not in compliance with 8 U.S.C. § 1373 or any other federal law. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 388 (1992); United States v. International Broth. of Teamsters, 931 F.2d 177, 189 (2d Cir. 1991).
2

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EXHIBIT 2

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES CONFERENCE OF

)

MAYORS; CITY OF CHICAGO,

)

)

Plaintiffs,

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS )

III,

)

)

Defendant. )

Case No. 17-CV-5720 Honorable Harry D. Leinenweber

[PROPOSED] ORDER GRANTING THE UNITED STATES CONFERENCE OF MAYORS’ MOTION FOR PRELIMINARY INJUNCTION

It is hereby ORDERED that the United States Conference of Mayors’ Motion for a Preliminary Injunction is GRANTED.
The United States Conference of Mayors (the “Conference”) has demonstrated that it is likely to succeed on the merits of its claims, that it will suffer irreparable harm in the absence of preliminary relief, that the balance of equities weighs in favor of an injunction, and that a preliminary injunction would serve the public interest.
Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, is hereby enjoined, on a nationwide basis, from imposing the following conditions on FY 2017 Byrne JAG funds, pending resolution of this litigation on the merits:
1. The condition that FY 2017 Byrne JAG recipients must provide at least 48 hours’ advance notice to the Department of Homeland Security (“DHS”) regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act;

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2. The condition that FY 2017 Byrne JAG recipients must permit DHS personnel to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and
3. The condition that FY 2017 Byrne JAG recipients must certify their compliance with 8 U.S.C. § 1373.

Entered on __________________, 2017

______________________________ Hon. Harry D. Leinenweber

 
 Case: 1:17-cv-05720 Document #: 110 Filed: 10/23/17 Page 1 of 14 PageID #:1564

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,

Plaintiff, v.
JEFF SESSIONS, Attorney General of the United States,

Civil Action No. 1:17-cv-05720 Hon. Harry D. Leinenweber

Defendant.

OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION

DATED: October 23, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

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INTRODUCTION This Court rejected the City of Chicago’s request to preliminarily enjoin a condition requiring recipients of grants under the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”) to certify compliance with 8 U.S.C. § 1373, finding that the City “failed to establish a likelihood of success on the merits” of its challenge to that condition. (Dkt. No. 78 at 41.) Section 1373 prohibits state and local government and law enforcement entities or officials from restricting certain communications with federal immigration authorities. The City now moves for reconsideration of the Court’s decision on the Section 1373 compliance condition. The motion is premised on a purportedly “stark new interpretation” of Section 1373 offered by the Department of Justice in a “preliminary assessment” letter sent to the City on October 11, 2017. (Dkt. No. 101 at 1; 103-1.) The City’s motion does not even attempt to revisit the central premises of the Court’s denial of a preliminary injunction: that the text “applicable Federal laws” in 34 U.S.C. § 10153(a)(5)(D) authorizes the Section 1373 compliance condition, and that the City has not contended that this grant condition violates the Spending Clause. (See Dkt. No. 78 at 25-26.) Those points alone suffice to sustain the Court’s earlier ruling. Skipping over this predicate barrier to relief, the City instead seeks to reargue a Tenth Amendment question whose resolution is not necessary for denying either the preliminary injunction or the motion for reconsideration. Moreover, the City bases its motion on a “preliminary assessment” that is not a final determination and introduces no significant change in the law or facts that would warrant reconsideration. Even on its own terms, the City’s motion errs: the Department’s letter creates no Tenth Amendment problem, does not newly interpret whether Section 1373 imposes affirmative obligations, and appropriately construes the scope of information covered by Section 1373.
1

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The City has thus raised nothing that would justify reconsideration under Rule 59(e) of the Court’s denial of a preliminary injunction with respect to the Section 1373 compliance condition. Instead, the City seeks to do “little more than rehash old arguments.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). That is of course not the proper purpose of a motion for reconsideration, and the City has moreover leveraged this unfounded motion to delay the Seventh Circuit’s consideration of Defendant’s request in that forum to stay the nationwide application of this Court’s preliminary injunction of two other Byrne JAG conditions not at issue in this motion. (See Dkt. No. 27, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Oct. 20, 2017).)
For all of these reasons, and as further explained below, the Court should deny the motion for partial reconsideration, and do so promptly.
BACKGROUND A. The Court’s Preliminary Injunction Ruling The City sought a preliminary injunction concerning what the Court describes as “the notice condition, the access condition, and the compliance condition” that the Department sought to apply to 2017 Byrne JAG awards. (Dkt. No. 78 at 5.) The Court preliminarily enjoined the notice and access conditions, but granted no relief to the City regarding the compliance condition “because the City has failed to establish a likelihood of success on the merits” as to that condition. (Id. at 41.) The Court credited the Department’s assertion that 34 U.S.C. § 10153(a)(5)(D) “furnishes the authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” (Id. at 20.) The Court further noted that “the City has not argued that the compliance condition violates the Spending Clause.” (Id. at 25-26.) Construing Section 1373, the Court observed that “Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal
2

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program.” (Id. at 33.) The Court further opined that “Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.” (Id.)
B. The Department’s “Preliminary Assessment” Letter Prior to this lawsuit, the Department had sought a legal analysis from each of ten jurisdictions, including the City of Chicago, regarding how the jurisdiction is in compliance with Section 1373. (See Dkt. No. 26-8.) The City provided an analysis contending that the City complies with the statute. (See Dkt. No. 26-7.) On October 11, 2017, the Department sent to the City a letter offering a “preliminary assessment” of the City’s compliance with Section 1373. (Dkt. No. 103-1 at 2.) The letter states that its analysis is “based on a preliminary review” of the City’s “submission, all attached documentation, and [the City’s] laws, policies, and practices relating to compliance with section 1373, to the extent they were provided or are readily available.” (Id. at 1.) The letter requests the City’s response by October 27, 2017 before the Department makes its final determination. (Id. at 2.) Preliminary assessment letters were sent concurrently to six other jurisdictions apart from the City of Chicago, as well.1 The letter preliminarily identifies a section of the City’s Municipal Code that “restricts the sharing of information regarding immigration status in violation of 8 U.S.C. § 1373(a).” (Id. at 1 (citing Municipal Code of Chicago § 2-173-042).) Also, the letter preliminarily identifies other sections of the Municipal Code that in three respects “may violate 8 U.S.C. § 1373, depending on how [the City] interprets and applies them.” (Id. at 1-2 (citing Municipal Code of Chicago §§ 2173-020 and 2-173-030).) The letter notes that each of these potentially offending provisions is

1

See DOJ Press Release No. 17-1140 (Oct. 12, 2017), available at https://www.justice.gov/

opa/pr/justice-department-provides-last-chance-cities-show-1373-compliance.

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accompanied by a savings clause that might avert the violation if the City certifies that the City “interprets and applies this section to not restrict Chicago officers and employees from sharing information regarding citizenship and immigration status with federal immigration officials” and the City certifies that the City “has communicated this interpretation to its officers and employees.” (Id. at 2.)
C. Litigation Developments After the Department sent the preliminary assessment letter, the City filed its motion for partial reconsideration in this Court. Upon the City’s presentment of that motion on October 17, the City sought and received a schedule, over the Department’s proposal of a shorter schedule, under which briefing would be complete by October 30, 2017. On the basis of its motion for reconsideration in the district court, the City also sought in the Seventh Circuit on October 16 to suspend briefing on Defendant’s motion in that forum to stay the nationwide application of this Court’s preliminary injunction of two other Byrne JAG grant conditions. (See Dkt. No. 10, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Oct. 16, 2017).) Defendant had filed that Seventh Circuit stay motion on October 13 (see id. Dkt. No. 8), and the Seventh Circuit had ordered the City to respond by October 18 (see id. Dkt. No. 9). The Seventh Circuit on October 20 accepted the City’s request to suspend briefing on the stay motion “until the district court resolves the City’s motion for reconsideration.” (See id. Dkt. No. 27.)
LEGAL STANDARD “Rule 59 is not a vehicle for rearguing previously rejected motions.” Oto, 224 F.3d at 606. The City “bears a heavy burden in seeking to reverse the Court’s prior ruling.” Mednick v. Precor, Inc., 2017 WL 2619139, at *3 (N.D. Ill. June 16, 2017) (Leinenweber, J.). “In attempting to carry its burden,” the City “cannot advance arguments or theories that the Court has previously rejected or those that ‘could and should have been made before the district court rendered a judgment.’”
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Id. at *3 (quoting Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007)). “Belated factual or legal attacks are viewed with great suspicion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
A “limited circumstance in which reconsideration may be appropriate is if there has been a significant change in the law or facts.” Am. Soc. of Media Photographers, Inc. v. Google, Inc., 2013 WL 4953796, at *1 (N.D. Ill. Sept. 12, 2013) (Leinenweber, J.) (emphasis added); accord Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). Where a reconsideration motion cites a new event but “does not identify a significant change in facts,” and “then restates the same arguments made” earlier, the motion “fall[s] short of the extraordinary grounds needed for reconsideration.” Watts v. 84 Lumber Co., 2016 WL 379545, at *1 (S.D. Ill. Feb. 1, 2016).
ARGUMENT I. The City’s Challenge of a Grant Condition Does Not Present a Tenth Amendment
Commandeering Issue. The City does not request reconsideration of the Court’s determination that 34 U.S.C. § 10153(a)(5)(D) “furnishes the authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” (Dkt. No. 78 at 20.) With that central finding of statutory authorization undisturbed, the City is left to reargue constitutional issues. In moving for reconsideration, as before in seeking a preliminary injunction, “the City has not argued that the compliance condition violates the Spending Clause.” (Dkt. No. 78 at 25-26.) And for good reason. In the Spending Clause context, it is settled that the federal government “may offer funds to the States, and may condition those offers on compliance with specified conditions. These offers may well induce the States to adopt policies that the Federal Government itself could not impose.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 537 (2012).
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The City argues instead that the Section 1373 compliance condition constitutes commandeering in violation of the Tenth Amendment. That argument fails at the outset because conditions on federal funding do not amount to commandeering. (See Dkt. No. 32 at 13-14.) As the Supreme Court has explained, a “perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.” S. Dakota v. Dole, 483 U.S. 203, 210 (1987). The grant condition causes “no violation of the State’s sovereignty because the State could . . . adopt the simple expedient of not yielding to what [the State] urges is federal coercion.” Id. (quotation omitted). Because the dispute here turns on a grant condition that the City is free to accept or reject, the City has no valid Tenth Amendment claim and the commandeering analysis that the City wishes the Court to undertake is not called for. The City’s reconsideration motion should be denied on that basis alone. II. The Department’s “Preliminary Assessment” Letter Does Not Establish Grounds for
Reconsideration. The City does not establish how the Department’s “preliminary assessment” letter constitutes “a significant change in the law or facts” sufficient to trigger reconsideration. Media Photographers, 2013 WL 4953796, at *1. That letter on its face disclaims final agency action and instead invites the City to respond before a determination is made. (See Dkt. No. 103-1 at 2-3.) The City does not explain its assertion that the letter, despite being a preliminary step in an ongoing administrative process, somehow “announces a final, definitive . . . interpretation of Section 1373.” (Dkt. No. 101 at 3.) Nor does the City explain how the Department could offer “a final, definitive . . . interpretation of Section 1373.” (Id.) To the contrary, the City’s own motion purports to reserve the City’s right to challenge the Department’s interpretation. (See id. at 7 n.2.) The City’s motion thus asks this Court to undertake a new constitutional analysis of Section 1373 on the theory that the law or facts have been significantly changed by a letter communicating
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a preliminary assessment that lacks legal force and that the City apparently intends to contest. Even if the City were correct that the Department had adopted an interpretation of Section 1373 that raised constitutional concerns, the proper remedy would be to reject the Department’s interpretation of Section 1373, not to declare the statute unconstitutional (much less to declare the grant condition invalid, see Part I, supra).
All of this highlights that the City attempts to litigate the proper interpretation of Section 1373 prematurely. The Department has not made its final determination about the City’s compliance with Section 1373. Underscoring the prematurity of the City’s attempt to cast doubt on the correct interpretation of Section 1373, the City overlooks an incongruity between this issue and the relief it presently seeks. Even if the City were at some point to prevail on its interpretation of Section 1373, such a ruling would not justify enjoining the grant condition, but rather would go to whether the City complies with the condition. That question of the City’s compliance was not put before the Court on the City’s motion for a preliminary injunction. (See Dkt. No. 21-1.) III. The City Misconstrues the Department’s “Preliminary Assessment” Letter.
In addition to providing no basis for reconsidering the denial of a preliminary injunction as to the Section 1373 compliance condition for the reasons discussed above, the City’s argument fails even on its own terms. The City identifies two aspects of the Department’s “preliminary assessment” letter that the City believes warrant reconsideration on the basis of “new evidence,” but in both instances the City’s argument is fundamentally misconceived. (Dkt. No. 101 at 1.)
A. Affirmative Obligations Under Section 1373 The City takes issue with the letter’s statement that, in order to address sections of the City’s Municipal Code that in three respects “may violate 8 U.S.C. § 1373, depending on how [the City] interprets and applies them” in light of accompanying savings clauses, the City would need to clarify that the City “interprets and applies this section to not restrict Chicago officers and
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employees from sharing information regarding citizenship and immigration status with federal immigration officials” and that the City “has communicated this interpretation to its officers and employees.” (Dkt. No. 103-1 at 1-2.) According to the City, this is a “stark new interpretation” of Section 1373, in which the Department “contradicts” its “prior representation to the Court that 8 U.S.C. § 1373 imposes no affirmative obligations on Chicago.” (Id.)
The City’s accusation is wrong. The Department explained to the Court at oral argument that “what 1373 does in its heartland . . . is to prohibit the City, if they have the information, which they may not have collected, but if they have the information, they just can’t prohibit a City employee from sharing it.” (Dkt. No. 76 at 53:13-17.) The letter, which preliminarily observes that the City’s laws appear to limit City personnel from sharing information, is consistent with what the Department told the Court, and does not present any “stark new interpretation” regarding whether Section 1373 imposes an affirmative obligation.
The City apparently objects to the letter’s statements that, if the City construes its own law in a way that does not violate Section 1373, it must communicate that interpretation to its employees. (See Dkt. No. 101-3 at 1-2.) In the first instance, to do more than present this Court with a hypothetical dispute over an abstract possibility of communicating a certain interpretation to City personnel, the City needs to assert—which its motion for reconsideration does not do— that the City indeed does read the savings clauses in its Municipal Code sections to negate the restrictive effect on information-sharing that these sections would otherwise impose. Only a conforming interpretation would trigger a need to communicate the interpretation to City personnel. Even if the City gives the Court that assurance, the City cannot plausibly suggest that it can comply with Section 1373 only by assuring that it has adopted a certain interpretation of ambiguous City law, without also informing City personnel that they are not, in fact, prohibited
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from sharing information regarding immigration status with the federal government. None of this transforms Section 1373 into an “affirmative obligation” in any relevant sense. Had the City not enacted laws that otherwise appear to restrict information-sharing in violation of Section 1373, there would be no need for the City to act to clarify the ambiguity the City has itself introduced.
The Department’s approach on this point is not novel at all; rather, it comports with Q&A guidance that the Department earlier issued publicly and that the City attached to its own motion for a preliminary injunction. That guidance states, in part:
[T]he statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices. Your personnel must be informed that notwithstanding any state or local policies to the contrary, federal law does not allow any government entity or official to prohibit the sending or receiving of information about an individual’s citizenship or immigration status with any federal, state or local government entity and officials. (Dkt. No. 26-15 ¶ 1 (emphasis added).) The obligation to inform personnel in the face of apparently contrary state or local law is thus not new, and whatever argument the City wished to present on this point could and should have been offered before the Court ruled on the City’s motion for a preliminary injunction. “Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Caisse Nationale, 90 F.3d at 1270. Finally, the City’s argument now simply assumes, without supporting citation, that unconstitutional commandeering occurs when, because of a state’s or locality’s own ambiguous policies, it becomes necessary for the jurisdiction merely to advise its personnel about what federal law allows—which is a far cry from conscripting states and localities into immigration
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enforcement efforts by affirmatively requiring collection or sharing of information. See Reno v. Condon, 528 U.S. 141, 150 (2000) (rejecting commandeering challenge even though state argued that federal statute “requires the State’s employees to learn and apply the Act’s substantive restrictions” and Supreme Court agreed that federal statute’s “provisions will require time and effort on the part of state employees”). “Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.” Id. at 150-51 (quotation omitted). The City’s commandeering argument thus fails.
B. Custody Release Information The City asserts that the letter demonstrates an interpretation of Section 1373 under which the statute “authorizes the Department’s ‘notice’ condition.” (Dkt. No. 101 at 1.) It is unclear why that assertion, even if credited, would cast doubt on this Court’s prior holdings or provide a basis for reconsideration, but in any event the assertion is wrong. The “notice” condition, which the Department has sought to impose on FY 2017 Byrne JAG grants, would affirmatively require a policy designed to ensure the grantee’s cooperation with requests from certain federal officials to receive advance notice of the scheduled release date of certain individuals held in state or local correctional facilities. (See Dkt. No. 32-1, Ex. A ¶ 56.) The letter, by contrast, does not assert that Section 1373 imposes an affirmative requirement to cooperate in sharing such information; instead, it preliminarily suggests that a City law violates Section 1373 by “restrict[ing] the sharing of information regarding immigration status.” (Dkt. No. 103-1 at 1.) Again, the City has identified no new law or fact that warrants reconsideration.
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The City further criticizes that the Department’s letter too broadly construes the scope of “information regarding . . . .immigration status” under 8 U.S.C. § 1373(a). (See Dkt. No. 101 at 6.) In the letter, the Department preliminarily determined that a section of the City’s Municipal Code violates Section 1373 by restricting information-sharing with U.S. Immigration and Customs Enforcement regarding a person’s custody status or release date. (See Dkt. No. 103-1 at 1.) This argument is not relevant to the Court’s prior ruling because that decision did not turn on the scope of information at issue under Section 1373. The City in any event reads the statute too narrowly.
The INA states that the “immigration status of any individual” specifically “includ[es] . . . that a particular alien is not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(a) (emphasis added). “Present” means “being in a certain place and not elsewhere,” Webster’s New International Dictionary (2d ed. 1958), so the fact that an alien is in custody for a specific duration (in a certain place and not elsewhere) fits within the INA’s contemplation of immigration status.
Moreover, “information regarding . . . immigration status” is a broader category than “immigration status” itself. Comparison of different subsections within Section 1373 demonstrates that Congress used the broader “information regarding” formulation deliberately. Compare 8 U.S.C. § 1373(a) (concerning “information regarding . . . immigration status”) with 8 U.S.C. § 1373(c) (discussing “immigration status” but omitting the broader “information regarding” formulation). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, 556 U.S. 568, 573 (2009) (citation omitted). Indeed, the House Report accompanying the legislation stated that Section 1373 was intended “to give State and local officials the authority to communicate with the INS [Immigration and Naturalization Service] regarding the presence,
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whereabouts, and activities of illegal aliens.” H.R. Rep. No. 104-469, pt. 1, at 277 (1996) (emphasis added).
Custody release information falls within the sweep of “information regarding . . . immigration status” that Congress intended under Section 1373(a). Indeed, it is relevant to the federal government’s statutory duties, enacted at the same time as Section 1373, to “take into custody any alien who” has committed certain offenses, 8 U.S.C. § 1226(c)(1)(A), and to “take into custody any alien who . . . is inadmissible . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation,” 8 U.S.C. § 1226(c)(1)(D). It is sensible to read section 1373(a) to include information that assists the federal government in carrying out its statutory responsibilities under the same Act. See United Savings Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”).
* * * Regarding both affirmative obligations and custody release information, the City’s motion identifies nothing that alters this Court’s framing and analysis of the issue “whether state and local governments can restrict their officials from voluntarily cooperating with a federal scheme.” (Dkt. No. 78 at 32-33.) The City already had its opportunity to present argument on that issue when contesting the motion for a preliminary injunction. (See Dkt. No. 23 at 20 (City arguing that “Section 1373 constitutes facially unconstitutional commandeering”); Dkt. No. 69 at 9 (City arguing that “Section 1373 is itself unconstitutional”); Dkt. No. 76 at 27:8-12 (City discussing “unconstitutional commandeering” and arguing “that’s exactly what Section 1373 does”).) The City’s motion for reconsideration, under the facade of new evidence, at bottom does no more than “advance arguments or theories that the Court has previously rejected or those that ‘could and
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should have been made before the district court rendered a judgment.’” Mednick, 2017 WL 2619139, at *3 (quoting Sigsworth, 487 F.3d at 512). “A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court deny the City’s motion for partial reconsideration.

DATED: October 23, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
JOHN R. TYLER Assistant Director
/s/ Arjun Garg ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO, P la i n ti ff, v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION
The Attorney General’s position regarding the requirements of Section 1373—set forth for the first time in his October letter to Chicago—would impose new, affirmative responsibilities on the City. His response brief only feints at explaining why that new interpretation does not undercut this Court’s prior decision on the City’s preliminary injunction motion and necessitates reconsideration. Instead, the Attorney General spends most of his brief arguing points that the City did not raise and that are irrelevant to the ultimate disposition of this motion. He has identified no valid reason the Court should not grant the relief Chicago has requested.
Most importantly, the Attorney General ignores how we got here. When first confronted with the question whether Section 1373 imposes affirmative requirements on cities during argument on the City’s motion for a preliminary injunction, the Attorney General brushed aside any such concern, assuring the Court that “affirmative obligations to actually go and employ the regulatory system would be one thing, but 1373 doesn’t require that at all.” Sept. 11, 2017 Tr. at 59:7-11. Relying on the Attorney General’s representation, the Court concluded that “[r]ead literally, Section 1373 imposes no affirmative obligation on local governments,” Dkt. 78, at 34, and instead “restricts

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the ability of localities to prohibit state or local officials from assisting a federal program.” Id. at 33. The “distinction between an affirmative obligation and a proscription” was crucial to this Court’s determination that Chicago was unlikely to succeed on its constitutional challenge to Section 1373, as the Court concluded that “only affirmative demands on states constitute a violation of the Tenth Amendment.” Dkt. 78, at 30-33. Because the Court read Section 1373 to impose no such affirmative demands, the Court concluded that the statute was “consistent with the constitutional principles enunciated in New York and Printz,” two hallmark decisions of the Supreme Court’s federalism canon. Dkt. 78, at 33.
But the Attorney General’s position shifted after the Court issued its decision. On October 11, 2017, the Department of Justice issued a letter to Chicago that announced a broad interpretation of Section 1373 at odds with the Attorney General’s earlier statements. Dkt. 103-1.1 With his new interpretation, the Attorney General (1) announced that Section 1373 imposes an affirmative obligation on Chicago to instruct its employees that they may cooperate with federal immigration authorities, and (2) expanded the categories of information to which Section 1373 applies to encompass information other than immigration status information—namely, information about whether an individual non-citizen is in custody and the date he or she will be released. Id.2 On these
1 The Attorney General’s position is not helped by his contention that imposing an affirmative communication requirement pursuant to Section 1373 is “not novel” (Opp. at 9) because it follows a suggestion from the 2016 Department of Justice guidance document. Rather, to the extent that this reflects a prior interpretation by the Department, that simply puts the Attorney General’s representations to this Court in starker relief, especially given his prior efforts during the hearing on Chicago’s motion to disclaim the very interpretation he now seeks to impose on the City. See Dkt. 101, at 2-3. 2 Although not relevant to the disposition of this motion, the Attorney General spends significant space in his response (Opp. at 8-9, 10-12) elaborating a tortured—and unsustainable—interpretation of “immigration status” information as including a detained individual’s “custody status and release date.” He says that “immigration status” includes whether a person is “not lawfully present in the United States,” Opp. at 11 (citing 8 U.S.C. § 1357(g)(10)(a)) (emphasis in original), and then asserts that “present” means “being in a certain place and not elsewhere.” Id. (citing Webster’s New
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two points—concerning what Section 1373 requires—the Letter staked out a final view, though the Letter noted that the Department’s determination about whether Chicago complies with those requirements was still preliminary. The Letter thus made crystal clear that the Attorney General believes Section 1373 imposes far broader obligations on cities than he previously admitted to this Court.3
When a “newly discovered” and “significant” fact arises after an order has issued, a Rule 59(e) motion is the proper vehicle to call that fact to the Court’s attention. Am. Soc’y of Media Photographers, Inc. v. Google, Inc., No. 13 C 408, 2013 WL 4953796 at *1 (N.D. Ill. Sept. 12, 2013); see also Bodenstab v. J.R. Blank & Assocs., Inc., No. 88 C 6125, 1991 WL 33647 (N.D. Ill. Mar. 8, 1991). The October letter, sent after the Court ruled on Chicago’s motion for a preliminary injunction, is “significant,” because it demonstrates that the Attorney General’s operative understanding of Section 1373—i.e., the understanding that he will impose on Chicago absent injunctive relief— reaches beyond the bounds of what this Court has suggested are the constitutional limits on federal government authority and beyond the bounds that the Attorney General represented to this Court in
International Dictionary (2d ed. 1958)). Thus, he says, “immigration status” must refer to any “place” an alien is residing, and the length of time that alien is expected to remain there. But the word “present” cannot be shorn so brazenly from its context. Whether a person is or is “not lawfully present” within the meaning of section 1357(g)(10)(a) depends not on whether the person is present in a specific place, such as the City of Chicago, or even more specifically in one of its lockup facilities, but on whether he or she is “present in the United States.” Chicago reserves its right to elaborate on this and the many other defects with the Attorney General’s erroneous construction of “immigration status”—and to seek a declaration that the City complies with Section 1373, see Dkt. 1 ¶¶ 136-41—at the proper juncture. 3 Chicago submitted a response to the Department’s Letter on October 27, 2017, which reaffirmed the City’s compliance with Section 1373. See Second Holtzblatt Decl. Ex. A. While expressly reserving all current and future objections to the Department’s new communication requirement, Chicago indicated that it had instructed its department heads “to share with their officers and employees Chicago’s interpretation of the WCO and explanation of its compliance with Section 1373” in the interest of reaching an expeditious resolution to this issue. Id. at 3.
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defending Section 1373’s constitutionality. Reconsideration should be granted as to the denial of

preliminary injunctive relief with respect to Section 1373.

I.

USING SECTION 1373 TO REQUIRE AFFIRMATIVE ACTION, AS THE ATTORNEY

GENERAL NOW SEEKS TO DO, REVEALS ITS CONSTITUTIONAL INVALIDITY

The Attorney General does not, and cannot, contest this Court’s conclusion that affirmative

burdens on cities give rise to commandeering harms, nor does he deny that his new requirement

necessitates affirmative action by Chicago. His principal defense is to try to downplay the

significance of his affirmative requirement, characterizing it as “merely … advis[ing] [City] personnel

about what federal law allows.” Opp. at 9. But there is a critical difference between withholding

restrictions on employee cooperation with federal officials (as this Court construed Section 1373 to

require) and affirmatively instructing employees that they are free on the City’s time and dime to

assist in enforcing federal immigration law (as the Department’s letter now requires). As the

Attorney General surely knows, employees are far more likely to act when their employer

affirmatively points out that they are free to do so than when the employer silently leaves that choice

to the employees’ own election. Even assuming that requiring Chicago not to restrict its employees

is constitutional, forcing it to affirmatively grant permission to its police officers to help enforce

federal law is not. State and local governments can act “only through [their] officers and agents.”

Nevada v. Hicks, 533 U.S. 353, 365 (2001) (quoting Tennessee v. Davis, 100 U.S. 257, 263 (1879)). Thus,

personnel decisions—including decisions about how personnel interact with the federal

government—are “decision[s] of the most fundamental sort” for Chicago. Gregory v. Ashcroft, 501

U.S. 452, 460 (1991).

Moreover, the Attorney General’s suggestion that a supposed ambiguity in the Welcoming

City Ordinance triggers this new affirmative obligation to instruct the City’s employees (Opp. at 9)

only illustrates the extraordinary breadth of his interpretation of Section 1373. As Chicago has

maintained throughout this litigation, Section 1373’s bar on “prohibit[ing]” or “in any way

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restrict[ing]” information-sharing cannot be constitutionally understood to require cities to take affirmative steps to combat the theoretical risk that an employee might mistakenly think such information sharing is prohibited. See, e.g. Dkt. 69, at 9-10. Such an interpretation would turn what this Court has characterized as mere prohibition into an extraordinary sword that the Executive could wield (as it has already begun to do) to require cities to take a vast range of affirmative actions at the federal government’s “direction.” New York v. United States, 505 U.S. 144, 176-177 (1992) (holding that a federal program under which States were required to regulate “pursuant to Congress’ instructions” was “inconsistent with the federal structure of our Government established by the Constitution”).
Further, to the extent the Attorney General intended to suggest that there was a de minimis exception to the rule against commandeering, that suggestion directly contradicts Supreme Court precedent. Indeed, the Attorney General entirely fails to respond to Printz v. United States, which the City cited for its clear instruction that a directive by the federal government is no less commandeering because the required activities are “discrete, ministerial tasks.” 521 U.S. 898, 929 (1997). Instead, the Attorney General cites the Court’s statement in Reno v. Condon that a “State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity.” Opp. at 9-10 (citing 528 U.S. 141, 150-51 (2000)). But Reno is inapposite. The law at issue in Reno did not regulate States as States at all, and thus did not implicate the same federalism concerns; instead, it regulated all participants in a private “interstate market for personal information,” 528 U.S. at 150 n.3, who sold a particular category of “personal information to individuals and businesses.” Id. at 143. This included States that happened to own databases and participate in the market. Id. at 151 (law applied to the entire “universe of entities that participate as suppliers to the market for motor vehicle information”). Reno turned on the fact that the law at issue in no way sought “‘to control or influence the manner in which States
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regulate private parties’” and so “d[id] not” regulate States “in their sovereign capacity.” Id. at 150151 (quoting South Carolina v. Baker, 485 U.S. 505, 514-515 (1988)). The case thus stands for the unremarkable proposition that it is not commandeering to require States participating in private markets to comply with otherwise valid federal rules for those markets.
Section 1373, by contrast, targets the purely public domain of “immigration law enforcement,” S. Rep. No. 104-249, at 19 (1996). The “whole object of the law is to direct the functioning” of State and local governments acting in their sovereign capacity to define and safeguard rights and entitlements of their residents and to control the actions of their employees. Printz, 521 U.S. at 932. Unlike the law at issue in Reno, Section 1373 indisputably does “seek[] to control or influence the manner in which States regulate private parties” by inducing “state officials to assist in the enforcement of federal statutes.” Reno, 528 U.S. at 150-151. Reno does not change this Court’s conclusion that requiring affirmative action by States and cities constitutes commandeering, and it does not provide a basis for departing from Printz’s instruction that the size or ministerial nature of the required task does not diminish the constitutional significance of the federal government’s intrusion into State sovereignty.
Thus, the Attorney General’s interpretation runs head-long into the rule this Court elaborated for identifying unconstitutional commandeering. If Section 1373 means what the Attorney General says it means, and authorizes him to mandate affirmative action by cities and States, then under this Court’s earlier reasoning, the City is entitled to a preliminary injunction prohibiting the Attorney General from imposing the Section 1373 condition. II. THE ATTORNEY GENERAL OFFERS NO OTHER BASIS TO DEFEAT CHICAGO’S MOTION
Rather than grapple with the impact of the Department’s recent letter on Chicago’s longstanding Tenth Amendment arguments, the Attorney General suggests that this Court should ignore the issue. First, he asserts that Chicago’s Tenth Amendment claims fail “because conditions
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on federal funding do not amount to commandeering.” Opp. at 5-6. That argument is no more persuasive now than it was when the Attorney General unsuccessfully made it in opposing Chicago’s motion for a preliminary injunction. See Dkt. 32, at 13-14. As this Court has already explained, “Section 1373 must pass constitutional muster,” Dkt. 78, at 25, and if it does not, it cannot be enforced against Chicago, through a Byrne JAG certification or otherwise. See also id. at 25-35 (analyzing whether Section 1373 violates the rule against commandeering). And for good reason. The Attorney General claims authority to enforce Section 1373 against Byrne JAG applicants on the theory that Section 1373 qualifies as an “applicable Federal law” with which Byrne JAG applicants must certify compliance. See 34 U.S.C. § 10153(a)(5)(D). But Section 1373 cannot qualify as an “applicable Federal law” because it is unconstitutional for the reasons stated above: “an unconstitutional act is not a law and can neither confer a right or immunity nor operate to supersede any existing valid law.” Chi., Indianapolis, & Louisville Ry. Co. v. Hackett, 228 U.S. 559, 566 (1912) (emphasis added); see also Branch v. Smith, 538 U.S. 254, 281 (2003) (unconstitutional state law was “a legal nullity” and so was irrelevant to a provision directing action “as state law requires”).
Next, the Attorney General simultaneously complains that Chicago’s motion comes both too early, because the October letter was just “preliminary,” Opp. at 1, 6-7, and too late, because Chicago could have made these arguments in its original motion for a preliminary injunction, Opp. at 4, 9, 12. Neither is true. Unlike his preliminary determination that Chicago does not comply with Section 1373, the Attorney General’s interpretation of Section 1373 is entirely final. Neither the Letter nor anything in his response suggests that he may reconsider that interpretation based on any information provided by Chicago. And his suggestion that this motion comes too late ignores that the timing of Chicago’s motion for reconsideration was driven entirely by the timing of the Attorney General’s letter evaluating Chicago’s prior submission certifying compliance with Section 1373. Once Chicago received that letter it moved expeditiously for reconsideration—just one day later.
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Finally, the Attorney General suggests (Opp. at 2, 4) that Chicago filed its reconsideration motion for purposes of delaying his motion for a stay pending appeal in the Seventh Circuit, but that suggestion is similarly unfounded. The Department took three-and-a-half months to evaluate the City’s submission, which Chicago submitted on June 30; once Chicago received the Attorney General’s letter, it notified the Court and sought reconsideration the next day.4 The Attorney General then sought (and obtained) a full ten days to respond to Chicago’s motion, never proposing (as he now erroneously claims) a shorter briefing schedule than this Court entered. See Oct. 17, 2017 Tr. at 4:19-24. Any delay caused by the need to apprise the Court of the new positions announced in the Department’s letter is thus wholly attributable to the Attorney General, not Chicago. And to the extent the Attorney General’s complaint is that Chicago notified the Seventh Circuit that it temporarily lacks jurisdiction, that complaint is misplaced because Chicago (and the Attorney General, for that matter) was obligated to inform the Seventh Circuit that this motion might raise a jurisdictional defect. See Espineuva v. Garrett, 895 F.2d 1164, 1166 (7th Cir. 1990).
CONCLUSION The Court should reconsider its conclusion that Section 1373 is not unconstitutional and, upon reconsideration, issue a preliminary injunction prohibiting the Attorney General from enforcing the Section 1373 condition.

October 30, 2017

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago

4 Although the letter is dated October 11, Chicago did not receive it until October 12. 8

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JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar.

JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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CERTIFICATE OF SERVICE On the 30th day of October, 2017, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL

 
 Case: 1:17-cv-05720 Document #: 118 Filed: 11/03/17 Page 1 of 16 PageID #:1669

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF CHICAGO,

)

)

Plaintiff,

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS III, )

)

Defendant.

)

Case No. 17-CV-5720 Honorable Harry D. Leinenweber

THE UNITED STATES CONFERENCE OF MAYORS’ REPLY IN FURTHER SUPPORT OF ITS MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24, The United States Conference of Mayors

(the “Conference”), by its undersigned attorneys, respectfully submits this reply brief in further

support of its motion to intervene (Docket (“Dkt.”) 91).

INTRODUCTION

In its opening motion, the Conference established that it is entitled to intervene in this

action to protect its members’ interests in the face of Defendant’s recent argument, both before

this Court and on appeal, that the City of Chicago (“Chicago”) lacks standing to seek nationwide

injunctive relief in this case. The Conference emphasized that intervention was necessary

because, if this Court or the Court of Appeals were to accept Defendant’s argument, the

Conference or its member cities would have to file new lawsuits to address the same

unauthorized conditions at issue in this case. This would severely prejudice the Conference’s

member cities by, at a minimum, delaying their receipt of tens of millions of dollars in critical

federal law enforcement funding.

In response, Defendant raises three arguments, none of which have merit.

First, Defendant argues that the Conference’s motion is not timely because the

Conference previously knew of this action and initially chose to participate as an amicus rather

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than as a co-plaintiff. Defendant overlooks that under well-established law, an intervenor whose rights appear to be adequately represented by a party at the outset of litigation has no obligation to intervene until there is reason to think that may not be the case. Here, until Defendant sought to stay the Court’s nationwide injunction on the basis that Chicago purportedly lacked standing to sustain it, the Conference had no reason to think its interests were not adequately represented by Chicago.
Moreover, Defendant ignores that courts evaluate timeliness not by any calendar, but according to the prejudice each side stands to suffer. Defendant identifies no prejudice he will suffer if intervention is granted at this early stage of the case. By contrast, requiring the Conference and its members to file new lawsuits will cause them severe prejudice by further delaying the receipt of critical grant funds for some cities, and by requiring other cities to either forego the funds entirely or to consent, under the imminent threat of losing funding, to the unauthorized conditions. Indeed, Defendant has expressly stated in seeking a stay that he wants to constrain the scope of this Court’s injunction precisely so that he can leverage the illegal and unauthorized conditions to force other jurisdictions to make this untenable choice. It is that request that requires the participation of the Conference as a party to this action, and the Conference’s motion is thus timely and appropriate.
Second, Defendant argues that the Conference may not intervene as of right because it could protect its members’ rights by filing a separate lawsuit. According to Defendant, this means that the Conference cannot establish that “disposing of the action may as a practical matter impair or impede the [Conference’s] ability to protect its interest,” as Rule 24(a)(2) requires. Defendant misunderstands the Rule. Courts regularly find that a party is entitled to intervene where, as a practical matter, requiring a separate lawsuit would impede that party’s ability to obtain relief. Such is the case here.
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Third, Defendant argues that the Conference lacks standing to represent its members in this action. Not so. The Supreme Court has long recognized that organizations are often ideally suited to represent their members’ interests in litigation, and has held that they may do so in all cases where: the members themselves could otherwise sue; the issues raised in the suit are germane to the organization’s purpose; and the participation of the individual members is not required to adjudicate those issues. This is just such a case.
The Court should grant the Conference leave to intervene in this action. ARGUMENT
I. The Court should grant the Conference leave to intervene as of right under Rule 24(a)(2). A party may intervene as of right where: (1) it makes a timely application; (2) it has an
interest relating to the subject matter of the action; (3) there is a “potential impairment, as a practical matter, of that interest by disposition of the action;” and (4) there is a lack of adequate representation of the interest by the existing parties to the action. Reich v. ABC/York-Estes Corp., 54 F.3d 316, 320 (7th Cir. 1995). In this case, Defendant does not contest that the second and fourth requirements are met. He concedes that the Conference has an interest in the subject matter of the action and that Chicago may not adequately represent that interest. Defendant argues only that the motion is not timely and that the Conference’s interest will not be impaired by disposition of this action. Defendant also argues that the Conference lacks standing to assert the interests of its member cities. Each of these arguments fails.
A. The Conference’s motion is timely. Defendant’s main argument is that the motion is untimely because the Conference knew of the lawsuit at the time it was filed but initially chose to participate as an amicus rather than as a co-plaintiff. (See Dkt. 113 at 5-6.) This argument fails to establish that the motion is untimely for at least two reasons.
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First, Defendant ignores that courts “do not expect a party to petition for intervention in instances in which the potential intervenor has no reason to believe its interests are not being properly represented.” Reich, 64 F.3d at 322. In such cases, an intervenor’s motion is timely if brought within a reasonable amount of time after learning that its interests may not be adequately advanced by a party to the litigation. Id. In fact, a potential intervenor has no right to intervene until it reasonably believes that its interest may not be adequately represented. See id; Fed. R. Civ. P. 24(a)(2). For that reason, courts regularly permit third-parties to intervene mid-case where a litigant may no longer be able to represent the third-party’s interests or the potential intervenor wishes to advance an argument or ground for relief unavailable to the original party. See Reich, 64 F.3d at 322; South v. Rowe, 759 F.2d 610, 612-13 (7th Cir. 1985). See also City of Chicago v. Fed. Emergency Mgmt. Agency, 660 F.3d 980, 985-86 (7th Cir. 2011) (citing cases).
Here, the Conference was not alerted to the need to intervene until Defendant sought to stay the Court’s nationwide injunction on the basis that Chicago purportedly lacked standing to seek nationwide relief. This took place on September 26, 2017. (Dkt. 81).1 The Conference appeared in Court only two days later to announce its intention to intervene and moved to intervene shortly thereafter. (Dkt. 91.) The Conference seeks to intervene because it can advance an argument against Defendant’s stay motion that Chicago cannot. Whatever the merit of Defendant’s argument that Chicago’s standing to seek relief in this case does not extend beyond its borders, that argument cannot apply to the Conference, whose members are located
1 Defendant argues that he raised the standing argument in his earlier opposition to Chicago’s motion for a preliminary injunction when he made an oblique reference to Chicago’s “injury in fact.” (Dkt. 113 at 78.) But that argument assumes too much. Defendant argued there that the Court would “abuse its discretion” by granting an overbroad injunction. (Dkt. 32 at 25.) Defendant never mentioned standing and never argued that the Court was prohibited from granting nationwide relief. Nothing requires a proposed intervenor to anticipate arguments a party does not make in express terms. Moreover, even if the Conference had done so, Defendant does not articulate any prejudice resulting from the Conference’s decision not to intervene at that time. See infra at 5-7.
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throughout the country. Under these circumstances, the Conference’s motion is sufficiently prompt.
Second, Defendant will not suffer prejudice as the result of any delay, and in fact he does not even claim any prejudice. This alone is fatal to Defendant’s argument. Even where a potential intervenor delays filing its motion, the motion should be granted unless the delay (as opposed to the mere fact of the intervenor’s participation in the suit) causes the existing parties prejudice and that prejudice outweighs any prejudice the intervenor may suffer if its motion is denied. Reich, 64 F.3d at 321; Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1027 (7th Cir. 2006); Zurich Capital Markets, Inc. v. Coglianese, 236 F.R.D. 379, 384 (N.D. Ill. 2006). In Craddieth, for example, the Seventh Circuit explained:
[Intervenor] would have been prudent to have moved earlier to intervene. But in the absence of any indication of prejudice to [the opposing party], the motion cannot be adjudged untimely as a matter of law. We don’t want a rule that would require a potential intervenor to intervene at the drop of a hat; that would just clog the district courts with motions to intervene. 442 F.3d at 1027. In this case, Defendant will suffer no prejudice from the Conference’s intervention at this early, pre-answer stage of the case. Defendant does not even say how he will be prejudiced. He argues only that the Court should not “indulg[e] the Conference’s shifting litigation strategy” by allowing the Conference to take advantage of the preliminary injunction the Court granted to Chicago. (See Dkt. 113 at 8-9, citing Larson v. JP Morgan Chase & Co., 530 F.3d 578, 583-84 (7th Cir. 2008).) But courts routinely permit a non-litigant to intervene in an action to take advantage of a ruling in favor of a litigant. This is particularly true in cases like this one, where the intervenor is in effect a third-party beneficiary of the order. See, e.g., Rowe, 759 F.2d at 61213 (allowing third-party beneficiary of consent decree to intervene two years after its entry to argue for an extension of the decree). And, of course, the mere fact that the Conference’s
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participation will defeat Defendant’s favored argument against the nationwide scope of the Court’s injunction does not constitute “prejudice” under Rule 24. See Zurich Capital Markets, Inc., 236 F.R.D. at 384 (intervention was appropriate where “any prejudice to ZCM that would result from the Liquidator’s intervention would result simply by virtue of the Liquidator’s involvement in the case, not from the Liquidator’s delay in moving to intervene”).
The cases cited by Defendant only underscore that he will suffer no cognizable prejudice. In Larson, the court denied a motion to intervene that came three-and-a-half years after a partial summary judgment ruling disposed of the intervenor’s would-be claims, which were no longer within the statute of limitations, and after the remaining claims were settled by the parties and final judgment was entered thereon. 530 F.3d at 581-84. In finding the motion untimely, the court emphasized that intervention threatened to derail or delay a $28-million settlement the parties had worked years to achieve. Id. at 584. Allowing intervention in Defendant’s remaining cases would have required similar reversals of fortune or reversions to much earlier stages of the case. See United States v. City of Chicago, 908 F.2d 197, 197-200 (7th Cir. 1990) (denying motion to intervene 15 years after suit was filed to object to $9 million consent decree and seek individual damages); Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 945, 948-50 (7th Cir. 2000) (noting that “[t]he purpose of the timeliness requirement is to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal;” denying intervention to object to settlement 4 years after suit was filed) (internal citation and quotation omitted); CE Design Ltd. v. King Supply Co., 791 F.3d 722, 726 (7th Cir. 2015) (denying intervention to object to settlement 3 years after suit was filed because “[a]t that late stage the only object of the intervention could be to block the settlement and put the class action suit back to where it had been [3 years earlier] in 2009”).
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These decisions are wholly inapposite. This case is still at the pleading stage. Defendant
has not yet answered Chicago’s complaint, and has recently asked for additional time to do so.
Moreover, the Court’s preliminary injunction order is still before it on reconsideration. And the
Conference’s request for the same relief granted to Chicago will not expand the case or require
the parties or the Court to start the case anew. For this reason, Chicago raises no objection to
intervention, which it would certainly do if (like in the cases cited by Defendant) there were any
chance that intervention would disrupt the relief it has obtained or stall the progress the Court has
made in the case.2
By contrast to Defendant, the Conference and its members will be severely prejudiced if
intervention is denied. As the Conference made clear in its complaint and motion for a
preliminary injunction, which it filed provisionally in anticipation of intervention, the
Conference’s member cities await the award of tens of millions of dollars in federal law
enforcement grants that Defendant is apparently withholding pending his appeal of this Court’s
order. (Dkt. 91-1, Complaint (“Compl.”) ¶¶ 39-41, Ex. A; Dkt. 109-1, Declaration (“Decl.”) of
Tom Cochran ¶¶ 9-14, Ex. A.) These funds are needed for critical, life-saving law enforcement
measures. (Compl. ¶¶ 42-44; Cochran Decl. ¶¶ 15-17.) If intervention is denied and the Court of
Appeals were to accept that Chicago could not obtain nationwide relief, the Conference and its
members would have to file at least one, and potentially many, new lawsuits to relitigate the
2 Defendant points out in a footnote that the Conference submitted a single declaration in support of its motion for a preliminary injunction and argues that having done so renders intervention “untimely,” citing Flying J, Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009). (Dkt. 113 at 9 n. 3.) The comparison is not apt. Flying J involved an intervention granted after a trial and final judgment. 578 F.3d at 573. Here, the case is still before the Court at the preliminary injunction stage, and the Conference submits the declaration of its Executive Director and CEO only to establish its interest in the litigation, not to expand upon the claims or issues already litigated. Like in Flying J, the Conference joins in this litigation only to further support the relief sought by the original plaintiff, Chicago. No evidentiary hearing was required to rule on Chicago’s motion for preliminary injunction, and none will be required if intervention is granted. Nor does Defendant argue that the declaration will expand the case in any other way that would not obtain in any case in which a new party intervenes. Intervention is thus timely. See Zurich Capital Markets, Inc., 236 F.R.D. at 384.
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same issues and seek the same relief, which at a minimum would further delay the receipt of important grant money that already has been allocated to them. Beyond delay, many cities could not afford to file suit because doing so would not be cost-effective. (See, e.g., Cochran Decl. ¶11, Ex. A.) Still others would be forced to capitulate to the unlawful conditions in the face of imminent law enforcement needs. Defendant has stated unequivocally that cities that receive grant award notifications will have only 45 days within which to agree to his conditions. (See Exhibit A, “Postaward Instructions,” at 4; Exhibit B, 8-15-2017 Hr’g Tr. at 6:15-21.) While Defendant has delayed sending notifications because of this case, he has made clear that he will do so immediately if the nationwide scope of this Court’s injunction is lifted. (See Dkt. 81 at 79.) This would leave the Conference and its members with insufficient time to obtain meaningful relief in a new suit.
This, of course, is precisely what Defendant wants—a stay of the nationwide injunction so that the unauthorized conditions can be forced upon jurisdictions that have not yet filed suit, and whose interests Defendant self-servingly claims Chicago cannot represent. Defendant thus repeatedly invites the Conference to file a new lawsuit (see Dkt. 113 at 8-9, 10), because Defendant knows that if he can only convince the Court of Appeals of Chicago’s lack of standing, any new lawsuit will now come too late for other jurisdictions to effectively oppose Defendant’s unauthorized and illegal conditions. But there is no reason for any defect in Chicago’s ability to seek nationwide relief to require additional lawsuits, because the Conference can remove any such defect by intervening here and now.
Under these circumstances, the mere fact that the Conference or its members could file additional, separate lawsuits is not sufficient to eliminate the prejudice caused by the delay in resolving those lawsuits. In Rowe, the Court of Appeals affirmed the grant of intervention in a similar case, finding that although the plaintiff in that case, who wished to take advantage of a
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consent decree entered two years earlier, could have filed a new lawsuit, doing so would cause him “significant” prejudice and would be needlessly inefficient. Rowe, 759 F.2d at 612. The Rowe court described the prejudice as such: “Radick’s alternative was to file a new suit in his own name. Yet such a suit would be costly, would result in further delays that could possibly moot the underlying controversy, and would not be assured of success.” Id. at 612 n. 2. As such, the court held, the district judge was correct to allow intervention. Id. at 612-13. See also Jeffries v. Swank, 317 F.R.D. 543, 552 (N.D. Ill. 2016) (allowing intervention in a 46-year-old case to avoid prejudice from delay and “a multiplicity of suits based on differing interpretations” of the court’s prior orders).
B. Disposition of this case will impair or impede the Conference’s ability, as a practical matter, to protect its interests.
Defendant also argues that the Conference’s ability to file another lawsuit or to otherwise “promote its policy goals” means that it cannot demonstrate that disposition of this case would impair or impede its ability to protect its interests. (Dkt. 113 at 10-12.) Defendant misunderstands the nature of this requirement. Rule 24(a)(2) requires only impairment “as a practical matter.” It does not require an intervening party to demonstrate that its claims would be legally precluded absent intervention. See City of Chicago, 660 F.3d at 985 (“But the possibility that the would-be intervenor if refused intervention might have an opportunity in the future to litigate his claim has been held not to be an automatic bar to intervention.”) Rather, among other grounds, “[c]ases allow intervention as a matter of right when an original party does not advance a ground that if upheld by the court would confer a tangible benefit on an intervenor who wants to litigate that ground.” Id. at 985-86 (citing cases). See also Jeffries, 317 F.R.D. at 553 (rejecting argument that there was no impairment because intervenor “could bring his claims under another lawsuit”).
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This is such a case. The Conference plainly has an interest in sustaining this Court’s nationwide injunction, and Defendant does not argue otherwise. By asserting that Chicago cannot alone pursue such relief, however, Defendant gives the Conference, whose members are nationwide, a new ground for sustaining the Court’s order that the Conference wishes to advance. As in City of Chicago and Jeffries, that ground is properly advanced in this litigation precisely because it is this Court’s order that is at issue. See id.
Moreover, while a separate suit is possible, for the reasons set forth above, it is not “practical.” Disposition of this matter without the Conference’s participation would, as a practical matter, foreclose the Conference’s ability to effectively protect its interests. See supra § I.B. For these reasons, intervention as of right is warranted here.
C. The Conference has standing to assert the interests of its member cities. Without citation to any legal authority, and ignoring the allegations of the Conference’s complaint, which must be accepted as true at this stage, see Lake Investors Development Group v. Egidi Development Group, 715 F.2d 1256, 1258 (7th Cir. 1983), Defendant argues that the Conference lacks standing to bring its claims. (Dkt. 113 at 12-14.) This argument fails. Defendant first points out that the Conference is not itself a Byrne JAG recipient, and thus intervenes only to protect the interests of its member cities. (Id. at 12.) While that is correct, contrary to Defendant’s argument, there is nothing “remarkable” about such a claim. It is well established that an association may sue to vindicate the rights of its members so long as: (1) its members, or some of them, would otherwise have standing to sue; (2) the interests the association seeks to protect are germane to its organizational purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual association members in the lawsuit. Ezell v. City of Chicago, 651 F.3d 684, 697 (7th Cir. 2011) (citing Hunt v. Wash. State Apple Adver. Comm’n, 517 U.S. 544, 553 (1977).)
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Defendant does not take aim at any of these requirements, but each is nonetheless amply met here. First, as the Conference’s complaint makes clear, its members consist of cities across the United States with populations of 30,000 or more. (Compl. ¶¶ 12, 17-22, Ex. A.) Many of these cities are recipients of Byrne JAG funds and have been allocated funds for 2017. (Id. at Ex. A; see also Cochran Decl. ¶¶ 10-14, Ex. A.) Among just those cities whose mayors serve in Conference leadership are 71 cities that together have been allocated over $21.5 million in Byrne JAG funds for fiscal year 2017. (Cochran Decl. ¶ 10, Ex. A.) Each of these cities could sue on its own, and thus the first requirement is met.
Second, the Conference’s interests in this case are indisputably germane to its organizational purpose. The Conference was founded for the very purpose of coordinating cities’ interaction with the federal government on policy matters, and particularly those impacting the distribution of federal funds to cities; one of its primary organizational purposes is to ensure that federal policy meets urban needs; and it has undertaken an extensive review of, and adopted policies opposing, the very conduct of Defendant at issue in this litigation. (Compl. ¶¶ 17-26, 58-70, Exs. B-D; Cochran Decl. ¶¶ 3-8, 18-37, Exs. D-E.)
Third, no individualized proof will be required in this case. The Conference seeks only injunctive relief against the same conditions imposed across all jurisdictions, and in fact seeks only the same injunctive relief already requested, and in part obtained, by Chicago. This is precisely the type of relief an association may seek. See Hunt, 432 U.S. at 344 (requests for declaratory and injunctive relief are “properly resolved in a group context”).
Rather than address the standing elements, Defendant raises a host of irrelevant or incorrect points in an attempt to call the Conference’s standing into question. Defendant argues, for example, that because “the U.S. Conference of Mayors is a group of mayors, not a group of cities,” it cannot represent the interests of cities that are Byrne JAG recipients. (Dkt. 113 at 14.)
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Defendant’s premise is incorrect. The Conference is a group of cities that are simply represented in the Conference by their mayors. This is made clear in the Conference’s complaint (¶¶ 12, 1722, Ex. A), motion for preliminary injunction (see Cochran Decl. ¶¶ 5-8, Ex. A), and its constitution, a copy of which is attached as Exhibit C to this reply brief. (See Art. II, § 1 (“Municipal corporations of 30,000 or over in population are eligible for membership, and representation of member municipal corporations in the work of the Conference shall be through the Mayor.”).)
Defendant also argues that because some member cities may not be bound, or may not consider themselves bound, by the Court’s judgment, the Court should find that the Conference lacks standing to represent the interests of any member city. (Dkt. 113 at 12-13.) But associational standing is not an “all or nothing” proposition. To the contrary, courts recognize that even where members’ interests conflict, an organization may still be permitted to bring suit to assert rights held by some of its members. See Builders Ass’n of Greater Chicago v. City of Chicago, 170 F.R.D. 435, 438-39 (N.D. Ill. 1996) (citing United Automobile Workers v. Brock, 477 U.S. 274, 290 (1986)). In such cases, the remedy is not to deny associational standing but to pursue “less drastic ways to protect the rights of dissenting members,” such as “through liberal approval of their intervention in the lawsuit or through refusal to preclude subsequent claims by dissenting members.” Id. at 439 (quotation and citation omitted). Thus, associations are permitted to assert claims on behalf of their members notwithstanding that a ruling on those claims may not bind each member. Id. That is because associations are uniquely positioned to represent the interests of their membership as a whole. Indeed, “the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.” Brock, 477 U.S. at 290.
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In this case, there is no conflict among the Conference’s members because each of them shares the same interest in avoiding the imposition of unauthorized, unconstitutional conditions upon their receipt of Byrne JAG funds. As such, there is every reason to permit the Conference to advance those interests, and the fact that some cities have sued, or may sue, separately does not detract from the Conference’s standing.
Moreover, Defendant does not explain how his concern regarding whether Conference members will be bound by a judgment applies to this case but not to the additional lawsuit, or lawsuits, Defendant invites the Conference and its members to file. In truth, and as the Court of Appeals has held in rejecting precisely this argument, any legitimate concern about whether an association’s members are bound by a judgment against the association is sufficiently obviated by principles of stare decisis and does not demonstrate any lack of associational standing. Chicago-Midwest Meat Ass’n v. City of Evanston, 589 F.2d 278, 281 n.3 (7th Cir. 1978).
For these reasons, the Court should grant the Conference’s motion to intervene as of right. II. Alternatively, the Court should permit the Conference to intervene under Rule
24(b). Even where a party is not entitled to intervene as of right, Rule 24(b) gives this Court wide discretion to permit intervention where there is any common question of law or fact and intervention would not “unduly delay or prejudice the adjudication of the original parties’ rights.” In deciding whether permissive intervention is appropriate, the Court should consider whether allowing intervention will be more efficient because it “might head off a second suit.” City of Chicago, 660 F.3d at 986 (holding that the district court abused its discretion in denying permissive intervention where there was “no basis for thinking that it would be as efficient to litigate [the dispute] in two lawsuits rather than one”).
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In this case, there is no question that the Conference shares legal claims and factual questions with Chicago, and Defendant does not argue otherwise. And for the reasons set forth extensively above, litigating before this Court will be far less prejudicial and burdensome on all parties. Notwithstanding his insistence on separate lawsuits in opposing this motion, Defendant has repeatedly admitted as much. Before this Court, for example, Defendant has argued that he is without resources to quickly respond to this motion and simultaneously litigate Philadelphia’s separate lawsuit (see Exhibit D, 10-11-17 Hr’g Tr. at 4:4-9) and complained that delay will irreparably harm both Defendant and the nearly 1,000 Byrne JAG recipients awaiting allocated grant funds. (Dkt. 81 at 7-9.) Defendant has sought an extension of time in the San Francisco litigation on similar grounds, and in Philadelphia Defendant has even relied upon this Court’s nationwide injunction in arguing that Philadelphia will not be irreparably harmed absent separate relief. (City and County of San Francisco v. Sessions, Case No. 17-cv-04642 (N.D. Cal.), Dkt. 40 ¶¶ 4-5; City of Philadelphia v. Sessions, Case No. 17-cv-03894 (E.D. Pa.), Dkt. 28 at 45-46.)
It is plain, then, that even Defendant will best be served by the expeditious resolution of the issues raised before this Court, rather than any additional litigation the Conference or its members might otherwise file. This is particularly true when one considers that as an association organized under the laws of Illinois (see Compl. ¶ 12; Cochran Decl. ¶ 3), the Conference would likely sue in this district. Its suit would also likely be assigned to this Court as a related case under Local Rule 40.1.3 Under the circumstances, there is no legitimate reason to require such a needless waste of time and resources by all parties. For these reasons and those set forth in
3 For this reason, the order entered by the United States District Court for the Northern District of California is irrelevant. (See Dkt. 113 Ex. A.) The court in that case exercised its discretion to deny a request for permissive intervention where it found that doing so would “upend[] established venue and forum rules.” (Id. at 2.) No such concern is present here, because venue would be proper in this district in any separate lawsuit brought by the Conference.
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Section I, above, the Court should, at a minimum, grant the Conference leave to intervene as a

matter of its discretion under Rule 24(b).

WHEREFORE, the United States Conference of Mayors respectfully requests that the

Court grant it leave to intervene in this matter and to file instanter the complaint attached as

Exhibit 1 to the Conference’s motion and the motion for a preliminary injunction filed

provisionally under Docket No. 109, and that the Court grant such further relief as the Court

deems necessary and just under the circumstances.

Dated: November 3, 2017

Respectfully submitted,

Brian C. Haussmann (ARDC # 6283054) John M. Fitzgerald (ARDC # 6282859) Katherine M. O’Brien (ARDC # 6300444) TABET DIVITO & ROTHSTEIN LLC 209 South LaSalle Street, 7th Floor Chicago, IL 60604 Telephone: (312) 762-9450 Facsimile: (312) 762-9451 bhaussmann@tdrlawfirm.com jfitzgerald@tdrlawfirm.com kobrien@tdrlawfirm.com

THE UNITED STATES CONFERENCE OF MAYORS
By: /s Brian C. Haussmann One of Its Attorneys

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on November 3, 2017, I electronically filed the foregoing The United States Conference of Mayors’ Reply in Further Support of Its Motion to Intervene with the Clerk of the Court for the United States District Court, Northern District of Illinois, Eastern Division, by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Brian C. Haussmann

Case: 1:17-cv-05720 Document #: 118-1 Filed: 11/03/17 Page 1 of 25 PageID #:1685
EXHIBIT A

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Office of the Chief Financial Officer 
 Grant Award and Financial Management Information
Postaward Instructions
January 2017

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Postaward Instructions

Grantees should take the following steps for the financial administration of awards from the Office of Justice Programs (OJP) and the Office on Violence Against Women (OVW). Step 1. Complete financial point of contact registration Step 2. Review the award and special conditions Step 3. Read the guidelines Step 4. Complete and return the Automated Clearing House form Step 5. Access payment using the Grant Payment Request System Step 6. Fulfill reporting requirements Step 7. Initiate closeout Step 8. Review top 10 frequently asked questions
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Office of the Chief Financial Officer 
 Postaward Instructions


STEP 1 – Complete Financial Point of Contact Registration

The Office of Justice Programs (OJP) and the Office on Violence Against Women (OVW) process awards through the OJP Grants Management System (GMS). OJP and OVW notify grantees of award approval by email through GMS. Once OJP and OVW approve an award, they send a notice through GMS to the email address of the Grant Point of Contact (GPOC), as well as to the authorized grantee official. OJP and OVW also notify grantees by email through GMS when they release awards. OJP and OVW do not mail paper copies of awards to award recipients.
When the GPOC receives an email notification announcing award of a grant, the GPOC should go to GMS to assign a Financial Point of Contact (FPOC).

The GPOC will not be able to access the award until registration for at least one FPOC is complete.
GMS is accessible at:

https://grants.ojp.usdoj.gov

Instructions on assigning, registering, and approving an FPOC is accessible at:

http://www.ojp.usdoj.gov/training/pdfs/gms_userguide.pdf

OJP grantees may contact the GMS Helpdesk at 1–888–549–9901 (choose option 3) or GMS.HelpDesk@usdoj.gov
OVW grantees may contact OVW GMS Support at 1–866–655–4482 or 
 OVW.GMSSupport@usdoj.gov. 


Once the FPOC completes registration, the GPOC may then access the award. 2 


January 2017

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Office of the Chief Financial Officer
 Postaward Instructions


STEP 2 - Review Award and Special Conditions

Once a financial point of contact (FPOC) completes registration (see step 1), the grant point of contact (GPOC) will be able to view the award online and print the document.

If in agreement with the terms and conditions, the authorized recipient official must sign
and date the agreement and initial the special conditions and submit both the signed agreement and initialed special condition pages to the OJP Control Desk or OVW using one of the following methods:

Agency: Fax:
Email:

OJP Faxes no longer accepted for
OJP award documents acceptance@usdoj.gov

OVW 202–514–7045
OVW.Acceptance@usdoj.gov

The GPOC must approve an FPOC before an award can be accessed in the GMS.

If the authorized recipient official has changed, the grantee should not alter the preprinted name in box 18 of the award. The GPOC will have to initiate a grant adjustment notice (GAN) in GMS to notify the Program Office of this change. Grantees have the capability to initiate a GAN by logging in to GMS at https://grants.ojp.usdoj.gov and selecting the GAN tab. For assistance accessing GMS or initiating the GAN, OJP grantees may contact the GMS Helpdesk at 1–888– 549–9901 (choose option 3) or via email at GMS.HelpDesk@usdoj.gov. OVW grantees may contact OVW GMS Support at 1–866–655–4482 or OVW.GMSSupport@usdoj.gov. Once the GAN is approved by the Program Office, the agreement should be signed by the new authorized recipient official. The former authorized recipient’s name should remain unaltered in box 18.

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The authorized recipient official should also initial each page of special conditions and return the approved GAN, signed agreement, and initialed special condition pages to the OJP Control Desk or OVW using one of the following methods:

Agency: Fax:
Email:

OJP Faxes no longer accepted for
OJP award documents acceptance@usdoj.gov

OVW 202–514–7045
OVW.Acceptance@usdoj.gov

The GPOC should notify the Program Office when special conditions have been met.

Note: The grantee should maintain the original signed documents for presentation in the event of an audit.
Community Oriented Policing Services (COPS) and U.S. Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) grantees should not send acceptance documents to OJP or OVW. Grantees may contact COPS at 1–800–421–6770 or DHS at 1–866– 927–5646 for instructions on the return of their award documents.

If the grantee does not agree with the terms and conditions, it may contact the awarding
Program Office as noted in the award package to decline, withdraw, or request modification.

Grantees have 45 days from the award date to accept the award. The grantee should notify the Program Office if the organization is unable to accept the award within this time. Grantees’ failure to accept the award within 45 days may result in the awarding agency deobligating funds.
Following are sample pages from GMS of the award and special conditions pages that award recipients will need to print, sign, and return to OJP or OVW to accept the award.

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January 2017 5

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Office of the Chief Financial Officer 
 Postaward Instructions

STEP 3 - Read the Guidelines
There are Office of Management and Budget (OMB) Circulars and Common Rules and other important information grantees will need to know for the administration of awards. The most up-to-date versions of these documents are available through the Internet, as noted: OMB Grants Management Circulars, http://www.whitehouse.gov/omb/grants/index.html Code of Federal Regulations, http://162.140.57.127/cgi-bin/ECFR?page=browse DOJ Grants Financial Guide, http://ojp.gov/financialguide/DOJ/index.htm for grants awarded in fiscal year (FY) 2015 and later. 2014 OJP Financial Guide, http://www.ojp.gov/financialguide/index.htm for grants awarded in FY 2014 and earlier.
OJP grantees with questions may contact: Office of Justice Programs
Office of the Chief Financial Officer Customer Service Center
1–800–458–0786 (choose option 2) or
ask.ocfo@usdoj.gov OVW grantees with questions may contact:
Office on Violence Against Women Grants Financial Management Division
1–888–514–8556 or
ovw.gfmd@usdoj.gov
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OMB Circulars and Common Rules 
 For Grant Management

Administrative requirements for all federal award recipients are contained in governmentwide common rules. On December 26, 2013, OMB issued new guidance that provides a governmentwide framework for grants management (Federal Register, 12/26/2013). The new guidance, the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 Code of Federal Regulation (CFR) Part 200), streamlines the Federal Government’s administrative, cost, and audit requirements, and has been implemented by DOJ via DOJ regulation at 2 CFR Part 2800. These new requirements, as implemented by DOJ, apply to federal awards made after December 26, 2014, and the audit requirements apply to audits for fiscal years beginning on or after December 26, 2014. For federal awards made before December 26, 2014, absent an agreement otherwise in a federal award issued after that date, the requirements in place at the time of award continue to apply. The new guidance supersedes the following OMB requirements:
 OMB Circular A-21, Cost Principles for Educational Institutions  OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments  OMB Circular A-102, Grants and Cooperative Agreements with State and Local Governments  OMB Circular A-110, Uniform Administrative Requirements for Grants and Agreements With
Institutions of Higher Education, Hospitals and Other Non-Profit Organizations  OMB Circular A-122, Cost Principles for Nonprofit Organizations  OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations (codified at
CFR Part 66 and Part 70).
The following requirements remain in place:  Governmentwide Debarment and Suspension (Nonprocurement) (codified at 2 CFR Part 180).  Governmentwide Requirements for Drug-Free Workplace (Grants) (codified at 28 CFR Part 83).  Restrictions on Lobbying (codified at 28 CFR Part 69).  Contracts With Commercial Organizations (codified at 48 CFR 31.2).  Principles for Determining Costs Applicable to Research and Development Under Grants and Contracts with Hospitals (codified at 45 CFR 74, Appendix E).
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Office of the Chief Financial Officer Postaward Instructions
STEP 4 - Complete and Return the Automated Clearing House Form
The U.S. Department of the Treasury (Treasury) uses Automated Clearing House (ACH) information to transmit payment data using electronic funds transfer to the recipient’s designated financial institution. Without a current, valid, and complete ACH form on file, payment requests for the same grant on the same day must be a total of less than $10 million. With a current, valid, and complete ACH form on file, payment requests for the same grant on the same day must be a total of less than $100 million. For questions, please contact the OCFO Customer Service Center at 1–800–458–0786 or ask.ocfo@usdoj.gov. The ACH form (ACH Vendor/Miscellaneous Payment Enrollment Form, SF 3881), located at http://ojp.gov/funding/Apply/Resources/ACHVendor.pdf, is required for: – New grantees who have never submitted an ACH form for an OJP grant. – Changes to banking information (for example, depositor account or bank routing number or
banking institution). – New grants that are linked to a vendor number for which there is no banking information on file. Unless banking information has changed, grantees should not submit a new ACH form for a new grant if the grant falls under a vendor number for which there is already banking information on file. Note: If submitting a new or updated ACH form, please contact the OCFO Customer Service Center at 1–800–458–0786 (option 2) to confirm banking information has been updated before proceeding with payment requests.
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If the grantee accepts the terms and conditions specified in the award, the grantee must submit a completed ACH form, signed by a preferred financial institution. The grantee must send the ORIGINAL ACH form (i.e., the ACH form containing the original signature of the bank representative) via courier service (e.g., Federal Express, UPS, etc.) to:
Office of Justice Programs 
 Office of the Chief Financial Officer 

Attn: Control Desk–ACH 
 810 Seventh Street, NW., Fifth Floor 

Washington, DC 20001

Note: The grantee should submit the original form only. OJP will not accept electronic transmissions or copies of the original form. OJP must complete processing the ACH form before the grantee draws down or requests funds.
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Office of the Chief Financial Officer 
 Postaward Instructions

STEP 5 - Access Payment Using the 
 Grant Payment Request System (GPRS)

Treasury electronically deposits payments to the recipient’s account using banking information the recipient provides on the ACH form. Before attempting to access payment, the recipient must submit an ACH form to OJP. For ACH instructions, see step 4.
OJP and OVW require financial points of contact (FPOCs) to register in the Grants Management System (GMS) and COPS requires FPOCs to register directly in GPRS. As of June 18, 2016, OJP requires GPRS users to consolidate usernames for the same grantee organization, regardless of whether the awards are OJP, OVW, or COPS awards. See the GPRS User Guide, http://ojp.gov/funding/Implement/Resources/GPRSUserGuide.pdf, for information in registering in GPRS and the GPRS Job Aid, http://ojp.gov/about/pdfs/gprsjobaid.pdf, for information on consolidating usernames.
OJP/OVW Registration Process for GPRS OJP and OVW grantees must be registered as FPOCs in GMS at https://grants.ojp.usdoj.gov before they can register as a drawdown specialist in GPRS (see step 1).
Once FPOCs are registered in GMS, grantees can then access GPRS at https://grants.ojp.usdoj.gov/gprs.
All grantees with accounts in GPRS will have the role of drawdown specialists. A grantee who is a GMS FPOC may request to be a GPRS drawdown specialist by accessing the GPRS Web site and selecting the “New GPRS User Registration for GMS” link. Once the registration is approved, GPRS sends an automated confirmation email to the GPOC and FPOC that the FPOC has been granted access to GPRS as a drawdown specialist. The confirmation email is sent the same day the registration request is made. Once GPRS sends the confirmation email, the drawdown specialist will be granted access to GPRS. Once GPRS grants access, the FPOC will use its GMS FPOC user identification (ID) and password to log in to GPRS.
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COPS Registration Process for GPRS COPS grantees with accounts in GPRS have the role of drawdown specialists. A COPS grantee may request to be a GPRS drawdown specialist by accessing the GPRS Web site and selecting the “New GPRS User Registration for COPS” link. Once the COPS Response Center approves registration, it sends a confirmation email to the FPOC, granting access to GPRS as a drawdown specialist. Once access is granted, the FPOC will use the user ID entered during the self-registration process and a temporary password (sent in the confirmation email) to log in to GPRS. Note: Important Banking Information Treasury will electronically disburse all funds to the grantee’s designated financial institution for deposit into its bank account. For this reason, grantees must ensure that they complete and return the original ACH banking information form (entitled ACH Vendor/Miscellaneous Payment Enrollment Form). The original ACH form must bear the original signature of the authorized bank official. OJP does not process payments during the last 4 business days of each month. For more information about payments or GPRS, the grantee may contact the OCFO Customer Service Center at 1–800–458–0786 (choose option 2) or email ask.ocfo@usdoj.gov.
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Office of the Chief Financial Officer Postaward Instructions
STEP 6 – Fulfill Reporting Requirements
Grantees must meet reporting requirements during the life of the grant. Grantees may find a full explanation of these requirements in the DOJ Grants Financial Guide, http://ojp.gov/financialguide/DOJ/index.htm, and the OJP Financial Guide, http://www.ojp.usdoj.gov/financialguide/index.htm. Grantees should also check special conditions on awards for additional reporting requirements. The Grant Payment Request System (see step 5) will not permit access to funds if financial reporting is delinquent. The following reports are required:  Single Audit Reports  Categorical Progress Reports  Federal Financial Reports
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Single Audit Reports
A special condition may be included with awards that details reporting requirements for audit reports. Grantees should review and comply with that special condition. Grantees may find information and instructions on submitting single audit reports in the DOJ Grants Financial Guide and OJP Financial Guide under Part III, Postaward Requirements, Chapter 3.19: Audit Requirements and in OMB Circular No. A-133, Audits of States, Local Governments, and Non-Profit Organizations.

Grantees should submit audit reports as follows:

 State and Local Governments, Institutions of Higher Education, and Nonprofit Institutions. Completed audit reports for fiscal years earlier than 2007 should be mailed to the Federal Audit Clearinghouse, Bureau of Census, 1201 East 10th Street, Jeffersonville, IN 47132. Completed audit reports for fiscal years 2008 and later should be submitted on the Federal Audit Clearinghouse’s Web site at http://harvester.census.gov/sac. Grantees should NOT submit audit reports to OJP unless specifically requested.

 Commercial Organizations and Individuals. One copy of all audit reports should be mailed to Office of Justice Programs, Office of the Chief Financial Officer, ATTN: Control Desk, 810 Seventh Street NW., Room 5303, Washington, DC 20531.

Categorical Assistance Progress Reports
OJP and OVW require grantees to report on the progress of the grant. Some grants may require an annual submission of progress report information. Most programs require semiannual reporting. Reporting requirements are specified in the grant solicitation and in the special conditions specified in the award. Grantees must submit Progress Reports via GMS. OJP grantees may contact the GMS Helpdesk at 1–888–549–9901 (choose option 3) or GMS.HelpDesk@usdoj.gov and OVW grantees may contact OVW GMS Support at 1–866–655–4482 or OVW.GMSSupport@usdoj.gov for assistance with submissions. Questions concerning progress reporting should be directed to the Program Manager for the award.

Semiannual reports are due:

Reporting period: January 1–June 30 July 1–December 31

Due no later than: July 30 January 30

The final Progress Report is due 90 days after the grant end date.

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Federal Financial Reports (SF-425)
This report (also called FFR) is used to track actual expenditures and unliquidated obligations.

OJP and OVW require grantees to file the SF-425 quarterly via GMS at https://grants.ojp.usdoj.gov.

COPS requires grantees to submit quarterly SF-425 reports on the COPS Web site at http://www.cops.usdoj.gov. For assistance accessing the system or completing the SF-425, grantees may contact the COPS Resource Center at 1–800–421–6670.

The schedule for submitting the SF-425 is as follows:

Reporting quarter: January 1–March 31 April 1–June 30 July 1–September 30 October 1–December 31

Due not later than: April 30 July 30 October 30 January 30

The final SF-425 is due 90 days after the grant end date.

Filing the SF-425 online. OJP and OVW require grantees to designate and approve at least one FPOC in GMS before they can file the SF-425. An FPOC must be registered and approved by the GPOC through GMS at https://grants.ojp.usdoj.gov. Instructions on assigning, registering, and approving an FPOC are available at http://www.ojp.usdoj.gov/training/pdfs/gms_userguide.pdf

OJP grantees may contact the GMS Helpdesk by phone at 1–888–549–9901 (choose option 3) or by email at GMS.HelpDesk@usdoj.gov and OVW grantees may contact OVW GMS Support at 1–866–655–4482 or OVW.GMSSupport@usdoj.gov for help in accessing or using GMS.

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Office of the Chief Financial Officer 
 Postaward Instructions

STEP 7 – Initiate Closeout
Within 90 days after the end date of the grant, grantees must initiate closeout of the grant in GMS. Grantees should: – Submit a Final Progress Report – Submit a Final FFR – Perform a financial reconciliation. If the reported unobligated balance of federal funds is
more than draw downs, the grantee should draw down the difference. If the reported unobligated balance of federal funds is less than draw downs, the grantee must submit a check for the difference to OJP to:
DOJ/Office of Justice Programs Office of the Chief Financial Officer ATTN: Accounting Control and Reconciliation Branch 810 Seventh Street, NW. – Fifth Floor Washington, DC 20531 The grantee should make the check payable to the Office of Justice Programs, and clearly mark it with the grant number and vendor number to ensure proper credit. The grantee should specify if funds are being returned to the grant or to be applied to program income. If sending funds for both, the grantee should specify what amount is for each. Staff will review grants submitted for closeout in GMS and contact grantees as necessary to complete closeout.
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Office of the Chief Financial Officer 
 Postaward Instructions

STEP 8 – Review Top 10 Frequently Asked Questions

1. How will I know that my application has been approved?
If you are the person who applied for the award or the authorized official of the organization named in the application, you will receive an email notifying you of your award. Once registration of at least one financial point of contact (FPOC) is completed in GMS, you may access the award by clicking on the “Awards” tab. For instructions on registering an FPOC, see http://www.ojp.usdoj.gov/training/pdfs/gms_userguide.pdf.

2. Who do I contact for assistance in using the Grants Management System?

Agency: Help Desk: Time:
Phone: Email:

OJP GMS Help Desk 7 a.m. to 9 p.m. eastern standard time (EST) 1–888–549–9901 (choose option 3) GMS.HelpDesk@usdoj.gov

OVW OVW GMS Support 8 a.m. to 4 p.m. EST
1–866–655–4482 OVW.GMSSupport@usdoj.gov

3. How do I accept my award?
If you are the person who applied for the award or the authorized official of the organization named in the application, you will receive an email notifying you of your award. Once registration of at least one FPOC is completed in GMS, you may access the award by clicking on the “Awards” tab. For instructions on registering an FPOC, see http://www.ojp.usdoj.gov/training/pdfs/gms_userguide.pdf
Print and read the award and special conditions right away. If you accept the terms and conditions of the award, have your authorized recipient official sign a copy of the award and initial the Special Condition pages and submit both the signed agreement and initialed Special Condition pages to the OJP Control Desk or OVW.
Note: The signature in box 19 should be the same as the preprinted name in box 18. If the authorized recipient official has changed, do not alter the preprinted name in box 18. A grant adjustment notice (GAN) will have to be initiated in GMS notifying your Program Office of this change. Once the Program Office approves the GAN, print it out, have the new authorized

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recipient official sign in box 19 and initial every page with special conditions. The documents should be submitted using one of the following methods:

Agency: Fax:
Email:

OJP Faxes no longer accepted for
OJP award documents acceptance@usdoj.gov

OVW 202–514–7045
OVW.Acceptance@usdoj.gov

Note: OJP will not disburse funds unless the award is submitted correctly.

Maintain the original signed documents in the event of an audit.

Note: Acceptance documents for Community Oriented Policing Services (COPS) or U.S. Department of Homeland Security (DHS)/Federal Emergency Management Agency grants should not be sent to OJP or OVW. Please contact COPS at 1–800–421–6770 or DHS at 1– 866–927–5646 for instructions on the return of their acceptance documents.

If you do not accept the terms/conditions, contact the OJP Program Office noted in the award letter immediately.

4. How do I obtain payment?
Award recipients should first submit a completed original ACH form with the original signature of the bank representative via courier (Federal Express, UPS, etc.) to the following address:

Office of Justice Programs
 Office of the Chief Financial Officer
 Attn: Control Desk 
 810 Seventh Street, NW., Fifth Floor 
 Washington, DC 20001 


Note: If submitting a new or updated ACH form, please contact the OCFO Customer Service Center at 1–800–458–0786 (choose option 2) to confirm banking information has been updated before proceeding with payment requests.

Once OCFO has been received and verified the ACH form, you may request funds (“draw down”) using OJP’s Grant Payment Request System (GPRS). Grantees and vendors can access GPRS at https://grants.ojp.usdoj.gov/gprs. Without a current, valid, and complete ACH form on file, payment requests for the same grant on the same day must be a total of less than $10 million.
With a current, valid, and complete ACH form on file, payment requests for the same grant on the same day must be a total of less than $100 million.

Upon successful completion of a draw down, the U.S. Department of the Treasury will deposit funds electronically into an account designated by the grantee on the ACH form.
January 2017

18 


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5. How can I access GPRS?
OJP and OVW grantees must register FPOCs in GMS at https://grants.ojp.usdoj.gov before they can successfully register drawdown specialists in GPRS. Once FPOC registration is complete, OJP and OVW grantees may then access the GPRS Web site and select the “New GPRS User Registration for GMS” link to register.
COPS grantees may request to be GPRS drawdown specialists by accessing the GPRS Web site, https://grants.ojp.usdoj.gov/gprs/welcome, and selecting the “New GPRS User Registration for COPS” link to register.
GPRS users are required to consolidate usernames for the same grantee organization, regardless of whether the awards are OJP, OVW, or COPS awards. See the GPRS User Guide, http://ojp.gov/funding/Implement/Resources/GPRSUserGuide.pdf, for details in registering in GPRS and the GPRS Job Aid, http://ojp.gov/about/pdfs/gprsjobaid.pdf, to consolidate usernames.
6. Why was my payment request denied?
Payment requests may be unsuccessful for various reasons, the most common of which are: (1) award was not accepted; (2) special conditions of the grant were not met; 3) certain reporting requirements throughout the life of the grant were not fulfilled; (4) legislation and federal grant management procedures during the life of a grant were not followed; (5) amount requested exceeded what was available; (6) financial reports (i.e. SF-425, Progress, or Audit) were not submitted by the due date; (7) the grant end date passed and an administrative closeout was initiated.
Compliance may affect the timing or the amount of the funds made available at any time.
7. What are my award responsibilities?
Upon initial award: Sign and email or fax (OVW only) the agreement and special conditions to confirm award acceptance. Complete and return the ACH form according to the instructions in the award.
Follow the instructions in the award to notify your Program Manager of your compliance with applicable special conditions.
January 2017 19 


Case: 1:17-cv-05720 Document #: 118-1 Filed: 11/03/17 Page 22 of 25 PageID #:1706

Reporting: Grantees are required to submit the SF-425 30 days after the end of each quarter as follows:

Reporting Quarter: January 1–March 31 April 1–June 30 July 1–September 30 October 1–December 31

Due Not Later Than:
 April 30 
 July 30 
 October 30 
 January 30


Final reports are due 90 days after the grant end date.

If your organization has a match requirement (refer to Program Announcement), the match should be reported on the report.

OJP and OVW grantees are required to submit reports online via GMS at https://grants.ojp.usdoj.gov. An FPOC must be registered before the report can be submitted. For instructions on registering an FPOC, see http://www.ojp.usdoj.gov/training/pdfs/gms_userguide.pdf.

COPS grantees are required to submit quarterly SF-425 reports on the COPS Web site at http://www.cops.usdoj.gov. For assistance accessing the system or completing the SF-425, contact the COPS Resource Center at 1–800–421–6670.

Progress Reports are usually due as follows or as listed in the solicitation:

Reporting Period: January 1–June 30 July 1–December 31

Due Not Later Than: July 30 January 30

Single Audit Reports may be required. A special condition is included with your award that details the reporting requirements for the audit reports. Please review that special condition.

Funds Management: Your organization should request funds based upon immediate disbursement/reimbursement requirements. Funds will not be paid in a lump sum, but rather disbursed over time as project costs are incurred or anticipated (with the exception of block grant programs such as the Byrne Justice Assistance Grant Program, Juvenile Accountability Block Grant Program, and State Criminal Alien Assistance Program awards, which may be drawn or are paid out in a lump sum).

Time requests to ensure that federal cash on hand is the minimum needed for disbursements/reimbursements to be made immediately or within 10 days. If the funds are not spent or disbursed within 10 days, you must return them to the awarding agency.

January 2017 20 


Case: 1:17-cv-05720 Document #: 118-1 Filed: 11/03/17 Page 23 of 25 PageID #:1707

8. How do I submit reports?
SF-425 and semiannual/annual Progress Reports should be filed online via GMS at: https://grants.ojp.usdoj.gov
OJP grantees may contact the GMS Helpdesk by phone at 1–888–549–9901 (choose option 3) or by email at GMS.HelpDesk@usdoj.gov and OVW grantees may contact OVW GMS Support at 1–866–655–4482 or OVW.GMSSupport@usdoj.gov for assistance.
Submit Audit Reports as follows:
 State and Local Governments, Institutions of Higher Education, and Nonprofit Institutions. Mail completed audit reports for fiscal years earlier than 2007 to the Federal Audit Clearinghouse, Bureau of Census, 1201 East 10th Street, Jeffersonville, IN 47132. Submit completed audit reports for fiscal years 2008 and later on the Federal Audit Clearinghouse’s Web site at http://harvester.census.gov/sac. Do NOT submit your audit reports to OJP unless specifically requested.
 Commercial Organizations and Individuals. Mail one copy of all audit reports to Office of Justice Programs, Office of the Chief Financial Officer, ATTN: Control Desk, 810 Seventh Street NW., Room 5303, Washington, DC 20531.

9. If I have questions about my grant, whom do I contact?

Program questions: Contact the Program Manager identified in the award letter.

Financial questions:

Agency:

OJP

Help Desk: OCFO Customer Service Center

Time:

8:30 a.m. to 6 p.m. EST

Phone:

1–800–458–0786 (option 2)

TDD: 202–616–3867

Email

Ask.ocfo@usdoj.gov

OVW Grants Financial Management Division 8 a.m. to 4 p.m. EST 1–888–514–8556
OVW.GFMD@usdoj.gov

January 2017 21

Case: 1:17-cv-05720 Document #: 118-1 Filed: 11/03/17 Page 24 of 25 PageID #:1708

10. What are the addresses and fax numbers for OCFO and OVW?

Office of Justice Programs

Office of the Chief Financial Officer 


Attn: Control Desk 


810 Seventh Street, NW. 


Washington, DC 20531 (U.S. Postal Service delivery) 


or 20001 (overnight delivery, e.g. FedEx, UPS, etc.)




Office on Violence Against Women 145 N Street, NE. Suite 10W.121 Washington, DC 20530 Fax: 202–514–7045

January 2017 22 


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U.S. Department of Justice Office of Justice Programs
Making the Pieces Fit Assisting grant recipients in resolving financial questions.
OCFO Customer Service Center 8:30 a.m.–6 p.m. EST, Monday through Friday 

1–800–458–0786 (choose option 2) 
 TDD (Telecommunication Device for Deaf) 202–616–3867 

OJP Web site address: http://www.ojp.usdoj.gov
 Email: ask.ocfo@usdoj.gov

OVW Grants Financial Management Division 8 a.m.–4 p.m. EST, Monday through Friday 1–888–514–8556 http://www.usdoj.gov/ovw Email: OVW.GFMD@usdoj.gov Fax: 202–514–7045 COPS Resource Center 9 a.m.–5 p.m. EST, Monday through Friday 1–800–421–6770 http://www.cops.usdoj.gov Email: askCOPSRC@usdoj.gov Fax: 202–616–9004
January 2017 23 


Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 1 of 13 PageID #:1710
EXHIBIT B

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 2 of 13 PageID #:1711 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3 THE CITY OF CHICAGO,

)

)

4

Plaintiff,

)

)

5

v.

) No. 17 CV 05720

)

6 JEFFERSON BEAUREGARD SESSIONS, )

III, Attorney General of the )

7 United States,

) Chicago, Illinois

) August 15, 2017

8

Defendant.

) 9:46 a.m.

9

TRANSCRIPT OF PROCEEDINGS

10

BEFORE THE HONORABLE HARRY D. LEINENWEBER

11 APPEARANCES:

12 For the Plaintiff: 13 14 15 16 17 18 19 20

RILEY SAFER HOLMES & CANCILA, LLP BY: MR. RONALD S. SAFER
MR. MATTHEW C. CROWL 70 West Madison Street, Suite 2900 Chicago, Illinois 60602 (312) 471-8736 rsafer@rshc-law.com mcrowl@rshc-law.com
WILMER CUTLER PICKERING HALE AND DORR, LLP BY: MR. ARI HOLTZBLATT 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6964 ari.holtzblatt@wilmerhale.com

21 Court Reporter: 22 23 24

Judith A. Walsh, CSR, RDR, CRR Official Court Reporter 219 S. Dearborn Street, Room 1944 Chicago, Illinois 60604 (312) 702-8865 judith_walsh@ilnd.uscourts.gov

25

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 3 of 13 PageID #:1712 2

1 For the Defendant: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

UNITED STATES DEPARTMENT OF JUSTICE BY: MR. CHAD A. READLER Acting Assistant Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530
MR. JOEL R. LEVIN Acting United States Attorney BY: MS. EILEEN M. MARUTZKY Assistant United States Attorney 219 South Dearborn Street Suite 500 Chicago, Illinois 60604 (312) 353-5300

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 4 of 13 PageID #:1713 3

1

(Proceedings heard in open court:)

2

THE CLERK: 17 C 5720, City of Chicago versus

3 Sessions.

4

MR. SAFER: Good morning, your Honor. Ron Safer,

5 Matt Crowl, and Ari Holtzblatt on behalf of the City of

6 Chicago.

7

MR. CROWL: Good morning, Judge.

8

MR. HOLTZBLATT: Good morning, Judge.

9

MR. READLER: Good morning, your Honor. Chad Readler

10 from the Justice Department on behalf of the defendant.

11

MS. MARUTZKY: Eileen Marutzky on behalf of

12 defendants.

13

THE COURT: All right. There's a motion for a

14 preliminary injunction. You need a -- is it your intention to

15 present evidence, or is it going to be on paper?

16

MR. SAFER: I think largely on paper, your Honor. I

17 don't -- we haven't considered it, but I don't think that

18 there is a factual dispute. We've asked the Court to take

19 judicial notice of the vast majority of the facts, and I don't

20 anticipate that there's any factual dispute.

21

THE COURT: I mean, it sounds to me like there's

22 really -- it's a question of law concerning what has happened

23 and what is about to happen. The question -- I have a trial

24 starting next week which may go three weeks, so it's my

25 understanding from the Attorney General that there -- your

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 5 of 13 PageID #:1714 4

1 date of September 5 is not a cutoff date and there is

2 additional time.

3

MR. SAFER: That is the position that they've taken

4 in the papers, your Honor, but I don't really think that bears

5 analysis because the City's position or the --

6

THE COURT: If they agree that it's not going to

7 happen, I mean, it's the same as a stipulation. I mean, it's

8 the same as a TRO almost.

9

MR. SAFER: I would say -- I would say if the

10 Department -- what the Department, in essence, has said is,

11 "Regardless of what we told you, regardless of what the

12 statute says, we will not refuse a grant," or put different --

13 put affirmatively, the Congressionally mandated grant will be

14 awarded or the award letter will issue irrespective of the

15 lack of certification and the lack of any of these conditions

16 that the Attorney General has asserted, then we would agree.

17

THE COURT: Well, I think what -- as I understand

18 what they're saying, if they lose the case, they won't raise

19 the September 5 deadline, whatever it is, they'll raise the

20 September 25th or whatever it is they said. And if they -- if

21 you win the case, then it's irrelevant, right?

22

MR. SAFER: Correct -- well, the grant -- the grant

23 of the money is statutorily required. There's only -- there's

24 a formula, and you submit your -- the basis for the formula,

25 the money's distributed. So and that is what happens. Then

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 6 of 13 PageID #:1715 5

1 there is -- so that is the award. And there is an award

2 letter that announces that the City has received or will

3 receive those funds.

4

And these requirements that appear for the first time

5 with the application, the government is now saying, "We will

6 not apply what the application says. We will apply those

7 conditions only at the time of award in order for the City to

8 receive those funds."

9

If that is correct, that is, that the money will be

10 awarded to the City, then I think the exigency goes down

11 substantially. There is still exigency on the part of the

12 City, and we still need to address this quickly because the

13 budget is being formed. The City needs to know whether it has

14 that money or whether it will be forced to abandon its

15 longstanding policy of cooperation with immigrant community

16 and law enforcement.

17

THE COURT: Let me see the trial thing.

18

I can't read your writing on here, the week of the

19 18th, Tuesday. What is -- okay.

20

I would be available -- you're talking like one day,

21 is that what you're talking about?

22

MR. SAFER: I believe so, your Honor.

23

THE COURT: On Monday or Thursday of the week of the

24 11th, it would be the 11th or the 14th of September. Does

25 that work?

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 7 of 13 PageID #:1716 6

1

MR. SAFER: Yes. Your Honor, if -- if we get the

2 representation from the Department that --

3

THE COURT: Let me ask, in your papers, you say that

4 September 5th is not a drop-dead date, that it's actually

5 later in September. Is that correct, sir?

6

MR. READLER: That's correct, your Honor. Thank you.

7

THE COURT: So in other words, if nothing is done on

8 the 5th because they have not been able to come before me,

9 then there's an assurance that they will not be denied the --

10 I mean, if they win the case, let's say, they will not --

11 well, let me put it another way. That's not really -- but you

12 would not use that as a reason to deny them the funds, the

13 fact that it wasn't done by the 5th and it was done later in

14 the month of September. Is that right, sir?

15

MR. READLER: I think in principle, it is, your

16 Honor. Under our grant program, the application is due

17 September 5th, but there's no binding commitment that's placed

18 upon the City just by the application. It's by receipt of the

19 award which would happen around September 30th, and then the

20 City has 45 days whether to agree to it, whether to agree to

21 the conditions.

22

So at that point, there would be a ripe dispute. In

23 other words, the parties would know on September 30th what

24 exactly are the requirements that the Department is putting on

25 these grants, and then the City will know whether they want to

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 8 of 13 PageID #:1717 7

1 challenge those or not, but certainly anything before

2 September 30 is a bit premature because, as we all

3 acknowledge, we don't exactly know what the conditions will be.

4

MR. SAFER: We haven't acknowledged that, your Honor.

5 The conditions are set forth very clearly in the application,

6 and it -- and the idea that the application has none of these

7 considerations for the condition --

8

THE COURT: Well, let me see. If they file their

9 application, they would be filing without prejudice to remove

10 those conditions.

11

MR. SAFER: Well, so put another way, your Honor, we

12 would file an application with the caveat that we are not

13 agreeing to these conditions.

14

THE COURT: Right. And that would not -- I mean,

15 obviously, if the Attorney General wins the case, then it's

16 kind of irrelevant. If they lose the case, we didn't want it

17 to be that they would -- the Attorney General loses the case

18 that you couldn't then say, well, you didn't do this by

19 September 5.

20

MR. READLER: I think that's right, your Honor. I

21 mean, every other city in the country will be filing an

22 application by September 5th, and every city is treated the

23 same. In other words, those are not binding commitments

24 because there's not an actual offer, you know, acceptance of

25 the grant until the end of September, and that's where the

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 9 of 13 PageID #:1718 8

1 express conditions are laid out.

2

So my recommendation to the City would be to

3 obviously apply, and we can then dispute what actual

4 obligations will be imposed upon the grant condition. I

5 actually think that issue is much more ripe after September

6 30th so we actually know what conditions -- for example, my

7 friends on the other side have raised some concerns about what

8 the conditions might be, but one of their concerns about

9 having to hold people longer than their sentence, that may not

10 be an actual condition.

11

In other words, the government might ask for 48

12 hours' notice before someone is released, and some of their

13 papers have posed the issue as if we're asking the City to

14 hold someone 48 hours longer than they actually would be held.

15 So in other words, there are a lot of disputes that are really

16 not ripe in the sense that we don't have actual concrete

17 conditions that are being imposed upon the City.

18

So we're happy to come to court in September. That

19 would be fine. We really would like the two weeks so we can

20 file our response to the brief because this is an important

21 case, and we'd like to fully vet those issues, but I leave it

22 to the Court's discretion when the best time to schedule a

23 hearing on the issue.

24

THE COURT: Well, the best time for me is in that

25 week of the 11th because it's between two trials.

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 10 of 13 PageID #:1719 9

1

MR. SAFER: So your Honor, just so that the Court is

2 clear -- and I don't think we've gotten an express yes or

3 no -- the application says individual JAG awards will include

4 two new express conditions that, with respect to the program

5 and activity that would be funded, are designed to ensure

6 that, etcetera, one, to permit personnel of the U.S.

7 Department of Homeland Security to access any correctional or

8 detention facility in order to meet with an alien and inquire

9 as to his or her rights to be or remain in the United States

10 and, two, provide at least 48 hours' advance notice to DHS

11 regarding the scheduled release date and time of an alien and

12 requires that when DHS requests such notice in order to take

13 custody of the alien pursuant to the Immigration Nationality

14 Act. The government has said that they strongly encourage

15 prospective applicants to review information on posted legal

16 requirements prior, bolded, to submitting an application.

17

So the City is going to submit an application that

18 says, here's our application. We are not agreeing, we're not

19 taking the position yet, but we're not agreeing to these

20 conditions. I think in order to avoid having this decision by

21 September 5th, the government has to say the grant will go

22 forward, the award will be made irrespective of those caveats.

23

THE COURT: If I find them unconstitutional or

24 illegal.

25

MR. SAFER: Well --

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 11 of 13 PageID #:1720 10

1

THE COURT: I mean, obviously, it depends. You know,

2 then you -- what I think I hear them saying is that if you win

3 the case, you will get the grant, assuming all things being

4 equal, without those two conditions.

5

MR. SAFER: I think what they're saying is the award

6 will be made -- I'm hoping that what I'm hearing them saying

7 is the award will be made irrespective of those caveats.

8 Whether or not the City actually receives the money will

9 depend on whether or not it complies with these conditions

10 which will be the subject of the --

11

THE COURT: Right.

12

MR. SAFER: -- the Court's --

13

THE COURT: If I waive them as unconstitutional, then

14 you wouldn't get the money and the City -- I mean, the

15 government would not say, we won't give you the money because

16 you didn't accept these conditions on September 5th and they

17 won't give -- the fact that you -- well, that seems to me --

18 in other words, if they win the case, they'll get the money

19 assuming everything else is being equal. Obviously, if they

20 don't comply with all other conditions, but if they win the

21 case, then they will get the money not subject to those

22 conditions that they're contesting.

23

MR. READLER: I think that's right, your Honor. I

24 understand my friends don't want to waive their challenge, and

25 we don't want to waive our right to impose them.

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 12 of 13 PageID #:1721 11

1

THE COURT: Right, but what it will do is give me

2 more time to schedule the case, give you more time to brief

3 the matter. And, you know, it's not an easy case, obviously.

4 It took 46 pages to put it down in a complaint and 25, I

5 think, in the brief, which doesn't surprise me.

6

All right. We'll set it for -- which day do you

7 want, the 11th or the --

8

MR. SAFER: The 12th actually works better.

9

THE COURT: The 12th, I -- well, let's see.

10

THE CLERK: We can probably do it.

11

THE COURT: We can do it in the afternoon on the 12th.

12

MR. SAFER: The 11th is fine, your Honor. We'll do

13 it on the 11th.

14

THE COURT: The 11th at 10:00 a.m.

15

THE CLERK: The 11th?

16

THE COURT: Yes, September 11th.

17

MR. READLER: And with respect to the briefing

18 schedule, then will we have until the 24th to file our brief,

19 the two weeks?

20

THE COURT: Right. You would get, yes, the 24th, and

21 then they get seven days to reply.

22

THE CLERK: So August 24th for the response and the

23 31st for the reply.

24

MR. SAFER: And the amici briefs would be due on the

25 24th as well, your Honor?

Case: 1:17-cv-05720 Document #: 118-2 Filed: 11/03/17 Page 13 of 13 PageID #:1722 12

1

THE COURT: The what?

2

MR. SAFER: The 31st, I'm sorry.

3

THE COURT: The 31st. Right.

4

MR. SAFER: Thank you.

5

THE COURT: How many amici will there be?

6

MR. SAFER: It's undetermined at the moment, your

7 Honor, but we'll encourage them to be pithy if they file.

8

THE COURT: All right.

9

MR. SAFER: Thank you, your Honor.

10

(Proceedings adjourned at 10:01 a.m.)

11

*******

12

CERTIFICATE

13

I, Judith A. Walsh, do hereby certify that the

14 foregoing is a complete, true, and accurate transcript of the

15 proceedings had in the above-entitled case before the

16 Honorable HARRY D. LEINENWEBER, one of the judges of said

17 Court, at Chicago, Illinois, on August 15, 2017.

18

19 /s/ Judith A. Walsh, CSR, RDR, F/CRR

August 17, 2017

20 Official Court Reporter

21 United States District Court

22 Northern District of Illinois

23 Eastern Division

24

25

Case: 1:17-cv-05720 Document #: 118-3 Filed: 11/03/17 Page 1 of 4 PageID #:1723
EXHIBIT C

Case: 1:17-cv-05720 Document #: 118-3 Filed: 11/03/17 Page 2 of 4 PageID #:1724
THE CONSTITUTION
OF THE UNITED STATES CONFERENCE
OF MAYORS
ARTICLE I NAME AND PURPOSE
SECTION 1. The purpose of this organization, which shall be known as the United States Conference of Mayors, shall be the general improvement of every branch of city government by the following means: First, the perpetuation of the Conference as an agency for the cooperation of Mayors, Managers, and other duly designated representatives of cities, in the practical study of all municipal questions; second, the holding of annual and other meetings for the discussion of current city problems; third, the furnishing of information to municipal officials in order to enable them to better perform their functions; and fourth, the safeguarding of the interests, rights and privileges of municipalities as they may be affected by legislation.
ARTICLE II MEMBERSHIP
SECTION 1. Population. Municipal corporations of 30,000 or over in population are eligible for membership, and representation of member municipal corporations in the work of the Conference shall be through the Mayor, whether elected by the people or the Council. The Executive Committee is authorized to invite the participation of the capital city of any state which does not otherwise qualify for membership. SECTION 2. Changes. The population basis for membership may be changed by a majority vote of the Executive Committee and Advisory Board. SECTION 3. Fees. The membership and service fees in the Conference shall be fixed on the basis of population by the Executive Committee. Membership and service fees, where appropriate, shall be automatically adjusted following each national census of population.
1

Case: 1:17-cv-05720 Document #: 118-3 Filed: 11/03/17 Page 3 of 4 PageID #:1725
ARTICLE III OFFICERS
SECTION 1. Executive Committee. The officers of the Conference shall be the Executive Committee, composed of a President, Vice President, Second Vice President, Past Presidents and thirteen Trustees. They shall be elected by the membership at the annual meeting and hold office until their successors are elected and qualified.
SECTION 2. Advisory Board. The annual meeting shall elect an Advisory Board of not more than twenty-seven members, which Board shall function in an advisory capacity to the Executive Committee on all matters of policy and program.
SECTION 3. Vacancies. A vacancy in the office of President shall be filled by the Vice President. A vacancy in the office of Vice President, Second Vice President, or Trustee member may be filled by a majority vote of the Executive Committee on an interim basis until the next annual meeting. Vacancies in the offices of President, Vice President, Second Vice President, Trustees, or member of the Advisory Board shall be deemed to exist if the incumbent no longer holds the official position of Mayor or formally resigned his position with the Conference.
SECTION 4. Reinstatement. When a Mayor who was previously a Trustee or member of the Advisory Board leaves office and subsequently returns to office, she/ he shall be reinstated to her/ his prior position. Such reinstatement shall be in addition to the thirteen Trustees or twenty-seven Advisory Board members and such position shall be eliminated when the Mayor leaves that position.
SECTION 5. Powers and Duties of the Executive Committee. When the members are not assembled for the annual meeting, the Executive Committee shall conduct the affairs of the organization.
1) The Executive Committee may adopt new policy between annual meetings so long as the following conditions are met:
a) The committee finds that an emergency condition exists which requires that action be taken as soon as possible;
b) The committee has made a reasonable effort to notify the membership and solicit comment;
c) The new policy is not inconsistent with any existing policies of the Conference; and
d) The new policy is adopted by no less than a majority of the members of the Executive Committee.
2) The Executive Committee may by a majority vote refer any matter to the membership of the Conference for an official expression of opinion.
3) The Executive Committee may make appointments of an honorary character.
SECTION 6. Powers and Duties of the President.
1) The President shall preside over all meetings of the Conference and shall be the official spokesperson of the Conference. The President may designate the Vice President or another Mayor to act on his or her behalf.
2) The President shall appoint standing committees and designate the chairperson, provided that the establishment of such committees shall be proposed by the President and approved by a majority vote of the Executive Committee.
3) The President may also create and appoint special committees which shall report directly to the President at a time designated. The President shall report to the membership at the annual meeting on the progress and recommendations of each and every special committee.
SECTION 7. The Executive Director. The Executive Director, who shall be appointed by the Executive Committee, holds office at the pleasure of the Executive Committee and Advisory Board. The Executive Director shall transact the necessary routine and financial business of the organization as may be determined by the Executive Committee and Advisory Board. The Executive Director may not under any circumstances conduct the affairs of the Conference so as to incur debts beyond the Conference assets and revenues. The Executive Director shall refrain from that overt partisan political activity which might diminish the effectiveness of the Executive Director in serving the Conference.
2

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SECTION 8. The Nominating Committee. The Nominating Committee shall recommend to the membership at the annual meeting the names of Mayors to fill the positions of Officers, Trustees and Advisory Board members. The Nominating Committee is appointed by the President and serves for one year. The prime consideration of the Nominating Committee shall be service and ability. In addition, the Nominating Committee shall consider race, sex, political affiliation, city size and region. In an effort to make the leadership of the Conference reasonably reflective of its membership, the Nominating Committee shall seek to maintain a balance of these characteristics in its recommendations for nominations for officers of the Conference.
ARTICLE IV MEETINGS AND VOTING
SECTION 1. Annual Meetings. The time, place and program of the annual meetings shall be determined by the Executive Committee. The Executive Committee shall meet at least once a year in addition to the annual meeting. Other special meetings of the Conference or of the Committee may be called by the Executive Committee after reasonable notice to the member cities.
SECTION 2. Voting. In all transactions requiring the official decision of the organization, each member city shall be entitled to one vote. A proxy is permitted only if the mayor designates in writing a representative from his or her city government to vote on behalf of the member city at the plenary business session of the annual meeting.
SECTION 3. Mail Ballot. When during the course of an annual meeting the sense of the meeting cannot be clearly determined, the question shall subsequently be submitted to the entire Conference membership by mail ballot.
SECTION 4. Resolutions. All resolutions presented to the members for consideration shall be first approved by the Resolutions Committee or must be approved for consideration by two-thirds vote of the member cities at the annual meeting. All resolutions presented by member cities for consideration at the annual meeting that call for the expenditure of public funds shall on the face of that resolution denote where possible the projected cost to the taxpayers of that resolution if passed.
ARTICLE V AMENDMENTS
SECTION 1. This Constitution may be amended or repealed by a referendum vote of two-thirds of the member cities by mail ballot.

ARTICLE VI DISSOLUTION
SECTION 1. Upon the dissolution or liquidation of the Corporation, and after payment or provision for payment of all liabilities of the Corporation, any and all remaining assets of the Corporation shall be distributed to Cities that are then Members of the Corporation.

Printed January 2009

THE UNITED STATES CONFERENCE OF MAYORS 1620 Eye Street, N.W. Washington, D.C. 20006

3

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EXHIBIT D

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 2 of 10 PageID #:1728 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3 THE CITY OF CHICAGO,

)

)

4

Plaintiff,

)

)

5

v.

) No. 17 CV 05720

)

6 JEFFERSON BEAUREGARD SESSIONS, )

III, Attorney General of the )

7 United States,

) Chicago, Illinois

) October 11, 2017

8

Defendant.

) 9:45 a.m.

9

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE HARRY D. LEINENWEBER

10

APPEARANCES:

11 For the Plaintiff:

RILEY SAFER HOLMES & CANCILA, LLP

BY: MR. RONALD S. SAFER

12

MS. LAURA KLEINMAN

70 West Madison Street, Suite 2900

13

Chicago, Illinois 60602

(312) 471-8736

14

rsafer@rshc-law.com

lkleinman@rshc-law.com

15

For the United States

TABET DiVITO ROTHSTEIN

16 Conference of Mayors:

BY: MR. BRIAN C. HAUSSMANN

209 South LaSalle Street, Suite 700

17

Chicago, Illinois 60604

(312) 762-9450

18

bhaussmann@tdrlawfirm.com

19 For the Defendant: 20 21 22

MR. JOEL R. LEVIN Acting United States Attorney BY: MR. THOMAS WALSH Assistant United States Attorney 219 South Dearborn Street, Suite 500 Chicago, Illinois 60604 (312) 353-5300

23 Court Reporter: 24 25

Judith A. Walsh, CSR, RDR, CRR Official Court Reporter 219 S. Dearborn Street, Room 1944 Chicago, Illinois 60604 (312) 702-8865 judith_walsh@ilnd.uscourts.gov

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 3 of 10 PageID #:1729 2

1

(Proceedings heard in open court:)

2

THE CLERK: 17 C 5720, City of Chicago versus

3 Sessions.

4

MR. SAFER: Good morning, your Honor. Ron Safer and

5 Laura Kleinman on behalf of the City of Chicago.

6

MR. HAUSSMANN: Good morning, your Honor. Brian

7 Haussmann on behalf of the United States Conference of Mayors.

8

MR. WALSH: And Thomas Walsh, your Honor, for the

9 United States. I'm standing in for my colleagues.

10

THE COURT: All right. This is a motion to

11 intervene. What's the position of the --

12

MR. WALSH: Judge, we'd like 16 days from today,

13 October 27th, to respond.

14

THE COURT: Any problem with that?

15

MR. HAUSSMANN: Your Honor, if I could, the motion

16 has been pending for a couple of weeks, and I think there's a

17 couple points that are important to -- well, it's been planned

18 for a couple of weeks and announced for a couple of weeks.

19 They've had it since Friday.

20

There's a couple points, I think, that are important

21 to consider when setting the schedule. You know, we've told

22 the Attorney General that we'd like them to file something

23 quickly, perhaps within about seven days. And the reason for

24 that is because the reason the Conference is intervening in

25 this case is because the Attorney General has now challenged

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 4 of 10 PageID #:1730 3

1 Chicago's standing to pursue nationwide injunctive relief,

2 that is, release beyond its borders. The Conference has a

3 significant interest in allowing its member cities to rely on

4 this Court's nationwide injunction.

5

THE COURT: Let me just -- without deciding the

6 motion, if I deny the motion to reconsider the nationwide

7 aspect of the injunction, does that eliminate the need for

8 the -- what is it -- the Conference of Mayors to enter the

9 case?

10

MR. HAUSSMANN: I don't think so, your Honor. We

11 certainly think that that motion to stay should be denied, but

12 I think the concern is that it will now go to the Seventh

13 Circuit where a further stay motion will likely be briefed,

14 and there's the possibility that the Court will then review

15 this Court's order granting nationwide relief. We, frankly,

16 would like to be there with the City such that if there is any

17 concern regarding the standing issue the government has

18 raised, the Conference, you know, can assert its rights and

19 protect its rights.

20

Now, I -- as a practical matter, we understand that

21 we may lag behind the City a little bit. I know your Honor

22 wants to rule promptly on the stay motion, but we'd like to

23 set an expeditious schedule. And there's another practicality

24 at issue here, and that is because we haven't yet been

25 permitted to intervene, we haven't been permitted to seek the

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 5 of 10 PageID #:1731 4

1 same injunctive relief that was granted to the City. We'd

2 like to do that as well, and I presume the government may want

3 to respond to that motion as well.

4

So I don't want to get ahead of ourselves, but I'd

5 like to set, you know, as expeditious a schedule as possible.

6

MR. WALSH: Judge, the lawyers that are working on it

7 are extremely busy. They've actually got another PI hearing

8 set for October 26th in the Philadelphia case. We don't ask

9 for this date lightly. It's the best -- the timeline probably

10 could get done efficiently. We don't see a high level of

11 expediency here.

12

The Conference of Mayors waited 60 days from the time

13 this case was filed. They waited 21 days from the time you

14 entered your preliminary injunction. It's sort of like

15 somebody waited until the dust starts settling and hopping on

16 the wagon they think is winning and then saying, "Could you

17 guys hurry up."

18

MR. HAUSSMANN: You --

19

MR. SAFER: Your Honor, that's just not correct.

20 This -- this motion to intervene was a direct response to the

21 challenge that was made for the first time in the motion to

22 stay which was a challenge to standing which had never been

23 made before. Now, the Conference, of course, was an amicus,

24 but for the first time in their brief in the motion to stay

25 that was filed on September 26th, they raised the standing

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 6 of 10 PageID #:1732 5

1 issue.

2

This motion to intervene was purely in response to

3 that, not in response to anything else. And so that's just

4 not accurate.

5

MR. HAUSSMANN: And if I may, your Honor, I did

6 appear two days later and announce the Conference's intention

7 to intervene.

8

THE COURT: What is -- 16 days is kind of an odd --

9 it's two weeks plus two days. Is there -- the extra two days,

10 is that a --

11

MR. WALSH: There's a PI hearing on October 26th in

12 Philadelphia. We'd like to have at least until the next day

13 to file a response here.

14

THE COURT: What is the status of the appeal?

15

MR. SAFER: They filed a notice of appeal on the

16 Chicago aspect of the --

17

THE COURT: I know, but is that -- has there been any

18 reaction from upstairs?

19

MR. SAFER: None, your Honor.

20

MR. WALSH: Judge, I think the next thing that would

21 happen would be your ruling on the motion to stay. A party

22 can't go to the court of appeals and ask for a stay without

23 first asking the district court for a stay.

24

MR. HAUSSMANN: And then my concern, your Honor, is

25 as a practical matter, what will then happen is the Attorney

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 7 of 10 PageID #:1733 6

1 General, notwithstanding how busy its lawyers are, is then

2 going to file an emergency stay motion in the Seventh Circuit.

3 In that emergency stay motion, the Attorney General will argue

4 that the City lacks standing to pursue nationwide injunctive

5 relief.

6

I'm sure it will be an emergency at that point in

7 time, although it's not now. And the problem with that from

8 the Conference's perspective is that it represents about 1400

9 cities around the country that wish to rely on this Court's

10 relief. And if there's any possibility -- we don't think it's

11 a likelihood and we don't think it would be a correct ruling,

12 but if there's a possibility that the Seventh Circuit were to

13 revoke -- reverse the nationwide scope, there would be a gap

14 in the nationwide injunction at a minimum, and perhaps the

15 city's many members, hundreds of members, would have to file

16 their own lawsuits to pursue the relief that has been

17 granted --

18

THE COURT: Are you seeking to intervene in the

19 Philadelphia lawsuit, too?

20

MR. HAUSSMANN: We have not sought to intervene in

21 the Philadelphia lawsuit, your Honor.

22

THE COURT: Is that a mirror to this case?

23

MR. WALSH: Yes.

24

MR. SAFER: Yes, your Honor, but -- as far as I know,

25 although obviously, the result in this case may moot that

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 8 of 10 PageID #:1734 7

1 case.

2

THE COURT: All right. I'll give them the 16 days.

3

Do you need to reply?

4

MR. HAUSSMANN: Your Honor, what I'd like -- I'm not

5 sure. What I'd like to do is set a short date for a reply,

6 and perhaps I can alert the Court --

7

THE COURT: Seven days?

8

MR. HAUSSMANN: Sure.

9

THE CLERK: October 27th and November 3.

10

THE COURT: All right. Thank you.

11

MR. SAFER: Now, it's our position, your Honor, that

12 the motion to stay need not -- need not wait for that.

13

THE COURT: No, I understand that.

14

MR. SAFER: Yes. Thank you.

15

THE COURT: There's a pending motion that's been

16 fully briefed.

17

MR. HAUSSMANN: Your Honor, may I ask one other

18 question? Would it be permissible for the Conference -- so

19 that we don't delay things any further, would it be

20 permissible during this briefing period on the motion to stay

21 for us to file our injunction motion? It will look much like

22 the City's motion with a couple of minor differences, perhaps,

23 and it will seek the same relief this Court has already

24 granted.

25

I say that just so that, you know, if the Court

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 9 of 10 PageID #:1735 8

1 grants the motion to intervene, I'd like there not to be

2 further delay on our part at least in briefing the preliminary

3 injunction motion.

4

MR. WALSH: Judge, I don't think there's anything

5 that stops somebody who is filing a case from filing a PI

6 motion at the same time they file their case.

7

THE COURT: Yes, I think that's correct. You can

8 file anything you want.

9

MR. HAUSSMANN: I just -- we're not a party yet, your

10 Honor. I just want to be careful that we're crossing our

11 T's --

12

THE COURT: All right.

13

MR. HAUSSMANN: -- and dotting our I's.

14

THE COURT: All right. We'll take it --

15

MR. WALSH: Thank you, your Honor.

16

MR. SAFER: Thank you, your Honor.

17

THE COURT: Thank you.

18

(Proceedings adjourned at 9:55 a.m.)

19

20

21

22

23

24

25

Case: 1:17-cv-05720 Document #: 118-4 Filed: 11/03/17 Page 10 of 10 PageID #:1736

1

C E R T I F I C A T E

2

I, Judith A. Walsh, do hereby certify that the

3 foregoing is a complete, true, and accurate transcript of the

4 proceedings had in the above-entitled case before the

5 Honorable HARRY D. LEINENWEBER, one of the judges of said

6 Court, at Chicago, Illinois, on October 11, 2017.

7

8 /s/ Judith A. Walsh, CSR, RDR, F/CRR

October 24, 2017

9 Official Court Reporter

10 United States District Court

11 Northern District of Illinois

12 Eastern Division

13

14

15

16

17

18

19

20

21

22

23

24

25

 
 Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 1 of 31 PageID #:1746

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,

Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,

Case No. 17 C 5720 Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER

Two Motions are before the Court. The first is the City of

Chicago’s (“Chicago”) Motion for Partial Reconsideration of this

Court’s September 15, 2017 Opinion granting in part and denying

in part Chicago’s Motion for a Preliminary Injunction against

certain conditions on the 2017 Byrne JAG grant. The second is

the United States Conference of Mayors’ Motion to Intervene as

of right and, alternatively, permissively. For the reasons

stated herein, Chicago’s Motion for Partial Reconsideration [ECF

No. 99] and the Conference’s Motion to Intervene [ECF No. 91]

are denied.

I. BACKGROUND

The Edward Byrne Memorial Justice Assistance Grant Program

(“Byrne JAG grant”) is an annual federal grant that provides

financial assistance for state and local law enforcement

Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 2 of 31 PageID #:1747
efforts. See, 34 U.S.C. § 10152. The Attorney General has attached three conditions to the 2017 Byrne JAG grant that are contested in this lawsuit, referred to as the notice, access, and compliance conditions, respectively. See, City of Chi. v. Sessions, No. 17 C 5720, 2017 U.S. Dist. LEXIS 149847, at *4-9 (N.D. Ill. Sep. 15, 2017). The Court assumes familiarity with the underlying facts of this case as recited in its previous opinion granting in part and denying in part Chicago’s motion for a preliminary injunction, see, generally, id., and will engage in only a procedural summary here.
On August 10, 2017, Chicago moved for a nationwide preliminary injunction, arguing that all three conditions imposed on the 2017 Byrne JAG grant were unlawful and unconstitutional. Sessions, 2017 U.S. Dist. LEXIS 149847 at *4. On September 15, 2017, the Court granted a preliminary injunction as to the notice and access conditions, but denied the preliminary injunction as to the compliance condition. Id. at *44. On September 26, 2017, the Attorney General filed a notice of appeal and moved to stay the nationwide scope of the injunction pending appeal. (See, Notice of Appeal, Sept. 26, 2017, ECF No. 79; Motion to Stay Nationwide Application of Preliminary Injunction, Sept. 26, 2017, ECF No. 80.) The Attorney General argued to this Court that Chicago, as the only
- 2 -

Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 3 of 31 PageID #:1748

plaintiff, lacked standing to pursue an injunction nationwide in

scope.

The United States Conference of Mayors (the

“Conference”) then moved to intervene on October 6, 2017. (See,

Conference’s Mot. to Intervene, Oct. 6, 2017, ECF No. 91.)

On October 13, 2017, this Court denied the Attorney

General’s Motion to Stay the nationwide scope of the injunction.

City of Chi. v. Sessions, No. 17 C 5720, 2017 U.S. Dist. LEXIS

169518, at *19 (N.D. Ill. Oct. 13, 2017). On that same day, the

Attorney General petitioned the Seventh Circuit to stay the

nationwide injunction, and Chicago moved for partial

reconsideration of the denial of the preliminary injunction as

to the third condition, the compliance condition. (See,

Defendant-Appellant’s Mot. for Partial Stay of Prelim. Inj.

Pending Appeal, No. 17-2991, Oct. 13, 2017, Dkt. 8; Chicago’s

Mot. for Partial Recons., Oct. 13, 2017, ECF No. 99.) On

October 16, 2017, Chicago moved to suspend briefing and

consideration of the partial stay in the Seventh Circuit due to

the motion for partial reconsideration pending before this

Court. (See, Mot. to Suspend Consideration of Mot. for Partial

Stay, No. 17-2991, Oct. 16, 2017, Dkt. 10.) On October 20,

2017, the Seventh Circuit granted Chicago’s Motion to suspend

proceedings on appeal pending this Court’s resolution of

Chicago’s motion for partial reconsideration. (See, Order, City

- 3 -

Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 4 of 31 PageID #:1749
of Chi. v. Sessions, Case No. 17-2991, Dkt. 27 (7th Cir. Oct. 20, 2017).)
This Court now takes the two pending motions in turn. II. ANALYSIS
A. The City of Chicago’s Motion for Partial Reconsideration
Chicago asks the Court to reconsider its denial of the preliminary injunction as to the compliance condition on the Byrne JAG grant. As explored thoroughly in the Court’s September 15, 2017 Opinion, the compliance condition requires a grant applicant to certify its compliance with 8 U.S.C. § 1373, a federal law that prohibits certain restrictions on communication between federal immigration agents and state and local government officials regarding an individual’s immigration status. See, 8 U.S.C. § 1373. Chicago bases its Motion on a letter to Eddie T. Johnson, Chicago Superintendent of Police, from Alan Hanson, Acting Assistant Attorney General, dated October 11, 2017. (See, Oct. 11, 2017 Letter, Ex. A to Decl. of Ari Holtzblatt, ECF No. 103 (“DOJ Letter”).) The letter states that the Department of Justice (the “DOJ”) has determined that Chicago is in violation of Section 1373 based on its preliminary review of Chicago’s laws and policies, and is therefore ineligible for Byrne JAG funding. (Ibid.) According to the
- 4 -

Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 5 of 31 PageID #:1750
letter, the DOJ found that at least one section of Chicago’s Welcoming City Ordinance violates Section 1373 (and potentially several other sections as well, depending on Chicago’s interpretation of the ordinance). (Ibid.) The letter concludes by inviting a response and/or additional documentation from Chicago based on the DOJ’s preliminary assessment, noting that the letter does not constitute final agency action. (Ibid.)
The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. However, these motions are common and understood to fall under either Rule 59(e) (to amend or alter a judgment) or Rule 60(b) (for relief from a judgment or order). See, FED. R. CIV. P. 59, 60. Although Chicago does not explicitly state the Federal Rule it is moving under, the Seventh Circuit construed Chicago’s motion for reconsideration under Rule 59(e) in its decision to suspend proceedings on appeal, and the parties reference Rule 59 in their briefs. (See, Order, City of Chi. v. Sessions, Case No. 17-2991, Dkt. 27 (7th Cir. Oct. 20, 2017); Chicago’s Mot. for Partial Recons., ¶ 5; Opp’n to Pl.’s Mot. for Partial Recons., at 2, Oct. 23, 2017, ECF No. 110.) As such, the Court construes the motion for reconsideration under Rule 59(e).
Rule 59(e) allows a court to alter or amend a judgment if the movant clearly establishes: (1) that the court committed a
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Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 6 of 31 PageID #:1751

manifest error of law or fact, or (2) that newly discovered

evidence precluded entry of judgment. Cincinnati Life Ins. Co.

v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). “It does not

provide a vehicle for a party to undo its own procedural

failures, and it certainly does not allow a party to introduce

new evidence or advance arguments that could and should have

been presented to the district court prior to the judgment.”

Ibid. (quoting Bordelon v. Chi. Sch. Reform Bd. of Trs., 233

F.3d 524, 529 (7th Cir. 2000)). Chicago moves this Court to

reconsider based on the second option: newly discovered

evidence. To succeed on a motion under Rule 59 by invoking

newly discovered evidence, a party must show that: “(1) it has

evidence that was discovered post-trial [or judgment]; (2) it

had exercised due diligence to discover the new evidence; (3)

the evidence is not merely cumulative or impeaching; (4) the

evidence is material; and (5) the evidence is such that [it]

would probably produce a new result.” Id. at 955 (quoting

Envtl. Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598, 608

(7th Cir. 2008)) (citation omitted).

Motions for

reconsideration “should only be granted in rare circumstances,”

and district courts enjoy wide discretion in determining whether

to grant them. Anderson v. Holy See, 934 F.Supp.2d 954, 958

(N.D. Ill. 2013), aff’d sub nom. Anderson v. Catholic Bishop of

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Chicago, 759 F.3d 645 (7th Cir. 2014); see also, Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (noting that motions to reconsider are discretionary).
In support of its motion to reconsider, Chicago points to this Court’s holding that “only affirmative demands on states constitute a violation of the Tenth Amendment” and “Section 1373 imposes no affirmative obligation on local governments.” City of Chi. v. Sessions, No. 17 C 5720, 2017 U.S. Dist. LEXIS 149847, at *37-38 (N.D. Ill. Sep. 15, 2017). It argues that the DOJ Letter interprets Section 1373 to impose affirmative obligations in contravention of this Court’s ruling, making reconsideration proper. See, ibid.
The Court disagrees. Nothing in the DOJ Letter contravenes the Court’s prior ruling, which did not rest on either the DOJ or Chicago’s interpretation of Section 1373’s requirements but, instead, rests solely on the text of Section 1373. See, Sessions, 2017 U.S. Dist. LEXIS 149487 at *35-38. The Court ruled on the constitutionality of Section 1373 as a facial challenge. See, ibid. Both parties not only agreed with that construction during the preliminary injunction hearing, but framed the central legal issue in facial terms and argued for such an approach. In response to the Court’s question about what Section 1373 allows, Mr. Readler on behalf of the Attorney
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Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 8 of 31 PageID #:1753
General stated: “Let me say we’re also here on a facial challenge, so [Chicago] [has] not – [Chicago is] not asking for a preliminary injunction today to declare that [Chicago’s] law is in compliance with 1373. That issue would probably require some discovery in terms of how it’s executed.” (Prelim. Inj. Hr’g at 53:3-8.) Similarly, in response to the Court’s question about whether Chicago was requesting an injunction limited to Chicago, Mr. Safer on behalf of Chicago answered, “No, your Honor. We’re asking for a nationwide injunction because this is a facial challenge to a . . . provision that is applied across the country.” (Id. at 62:9-14.) The Court asked a follow-up question about whether Chicago’s Welcoming City Ordinance distinguished it from other jurisdictions, to which Mr. Safer responded that he “agree[d] with the Attorney General . . . that this is a facial challenge, and . . . [that] it is a matter of saying that these conditions are unconstitutional, ultra vires, without authority, and that applies throughout the country.” (Id. at 62:7-63:5.) The DOJ Letter advancing a different interpretation of Section 1373 would not change the Court’s facial analysis of the Tenth Amendment challenge. Accordingly, the DOJ Letter does not meet two of the requirements for reconsideration based on newly discovered evidence: it is not
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Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 9 of 31 PageID #:1754
“material” to the Court’s facial analysis, and its consideration would not “produce a new result.” Beyrer, 722 F.3d at 955.
Furthermore, Chicago’s Motion for Partial Reconsideration brings up issues that were never previously before the Court. Chicago did not request a declaration of compliance with Section 1373 in its Motion for a Preliminary Injunction, making its Motion for Reconsideration an improper vehicle for injecting this issue into the case. See, Beyrer, 722 F.3d at 954 (quoting Bordelon, 233 F.3d at 529) (“[Reconsideration] certainly does not allow a party to . . . advance arguments that could . . . have been presented to the district court prior to the judgment.”). In addition, a denial of Chicago’s Motion for Reconsideration will not prevent it from seeking this relief. Included in Chicago’s seven-count Complaint is Count V, which seeks a declaratory judgment that Chicago complies with Section 1373. The argument that Chicago makes in support of its Motion for Reconsideration is a distinct issue and more appropriately ruled upon separately, rather than inserting an as-applied challenge into what was previously unanimously formulated and subsequently ruled on as a facial challenge.
Moreover, addressing an as-applied challenge to Section 1373 based on the DOJ Letter is premature. The DOJ Letter specifically disclaims final agency action and invites
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Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 10 of 31 PageID #:1755
Chicago to respond before a final determination is made. If the DOJ makes a final determination that Chicago is eligible for 2017 Byrne JAG funds, then no harm accrues to Chicago. Although Chicago argues that the DOJ letter “staked out a final view” on Section 1373, this does not change the fact that the DOJ has yet to make a determination about Chicago’s eligibility for funds. (See, Reply in Supp. of Pl.’s Mot. for Partial Recons., ECF No. 114, Oct. 30, 2017, at 3.) Litigating a policy position based on a preliminary assessment is premature, and this Court will not do so.
Accordingly, the Court denies Chicago’s Motion for Reconsideration because the DOJ letter is not “material” to the Court’s facial analysis and its consideration would not “produce a new result.” Beyrer, 722 F.3d at 955. Further, reconsideration is improper because the question whether Chicago complies with Section 1373 was not before the Court in its prior ruling. See, id. at 954.
B. The U.S. Conference of Mayors’ Motion to Intervene The Conference moves to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure and, alternatively, permissively under Rule 24(b). See, FED. R. CIV. P. 24. The Seventh Circuit has cautioned district courts to keep the two inquiries — the inquiry under Rule 24(a) and the
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inquiry under Rule 24(b) — distinct. City of Chi. v. FEMA, 660 F.3d 980, 987 (7th Cir. 2011).
The Conference is the official non-partisan organization of U.S. cities with populations of 30,000 or more. (See, Mot. to Intervene, ¶ 2.) The Conference’s role includes “ensur[ing] that federal policy meets urban needs” and promoting “coordinat[ion] on shared policy goals.” (See, Intervenor’s Compl., Ex. 1 to Mot. to Intervene, ECF No. 91, Oct. 6, 2017, ¶¶ 17-19.) The Conference alleges that its members adopt policy positions that collectively represent the views of the nation’s mayors. (See, Mot. to Intervene, ¶ 2.) In this specific instance, the Conference has adopted a policy opposing punitive sanctuary city practices, including the three conditions challenged in this litigation. (Ibid.)
1. Standing Before we proceed to determine if the Conference meets the requirements of intervention under either Rule, we must first analyze whether it has standing. The U.S. Supreme Court recently held that “an intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1651 (2017). The parties dispute whether the Conference is seeking relief
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“different” from that Chicago seeks. Regardless, in this Circuit an intervenor as of right must demonstrate Article III standing. See, Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571 (7th Cir. 2009) (“No one can maintain an action in a federal court … unless he has standing to sue, in the sense required by Article III of the Constitution . . . .”); see also, FEMA, 660 F.3d at 985 (noting that “more than Article III standing must be required” for intervention).
Article III of the Constitution limits the exercise of the judicial power to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “‘The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.’” Town of Chester, 137 S.Ct. at 1650 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). “Standing exists when the plaintiff suffers an actual or impending injury, no matter how small; the injury is caused by the defendant’s acts; and a judicial decision in the plaintiff’s favor would redress the injury.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010) (citations omitted).
“It has long been settled that even in the absence of injury to itself, an association may have standing solely as the representative of its members.” Int’l Union v. Brock, 477 U.S.
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274, 281 (1986) (internal quotations and citations omitted). An

association has standing to bring a suit on behalf of its

members where: “(a) its members would otherwise have standing

to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the

claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Hunt v.

Washington State Apple Advertising Comm’n, 432 U.S. 333, 343

(1977). Because its constituents have standing to bring the

same challenge that Chicago has brought and the Conference has

adopted a policy at odds with the Attorney General’s Byrne JAG

conditions, the Conference asserts that it has associational

standing.

The Attorney General disputes standing.

First, the

Attorney General argues that the Conference cannot represent the

cities (who have individual standing) because it is composed of

mayors rather than the cities themselves. The Conference

responds that it is comprised of cities but represented by their

respective mayors. In evaluating a potential intervenor’s

motion to intervene, the Court must accept all factual

allegations as true. Reich v. ABC/York-Estes Corp., 64 F.3d

316, 321 (7th Cir. 1995). Accordingly, we accept the factual

assertions of the Conference at this stage. Second, the

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Attorney General argues that the Conference is not authorized to litigate on behalf of the cities, but offers no authority for the proposition that litigation must be specifically authorized by members. Indeed, the Court can find no authority for this proposition outside the context of inter-member conflicts of interest. See, Retired Chi. Police Ass’n v. City of Chi., 76 F.3d 856, 865 (7th Cir. 1996).
Finally, the Attorney General contends that the Conference does not have standing to bring claims on behalf of the approximately 1,400 cities that it represents because the Conference itself is ineligible for Byrne JAG funds and it cannot represent the members because the member cities would not be bound by the judgment. The Seventh Circuit has rejected this argument:
The defendants argue that the association should not be accorded standing because a judgment against it might not be binding upon its members. We see little likelihood that the defendants will suffer the burden of relitigating the claims raised in this case. The Stare decisis effect of our decision provides the defendants with substantial protection against further litigation. Chicago-Midwest Meat Ass’n v. City of Evanston, 589 F.2d 278, 281 n. 3 (7th Cir. 1978). Additionally, although members may not individually be bound in cases based on associational
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standing, the U.S. Supreme Court has nonetheless recognized associational standing. See, Hunt, 432 U.S. at 343.
Turning to the requirements for associational standing, first, the member cities have the ability to sue on their own behalf, just as Chicago does. Second, the Conference’s interest in protecting local policy decisions in immigration enforcement is germane to the organizational purpose as it involves the power of city government. (See, Intervenor’s Compl., Ex. 1 to Mot. to Intervene, ¶¶ 17-22.) Additionally, the Conference adopted three official resolutions regarding federal sanctuary policies. (Id. ¶¶ 58-70.) Each resolution passed by a wide majority of its voting members. (Id. at ¶ 70.) Third, the relief sought is of a sort – declaratory and injunctive – that is amenable to associational standing. For example, the Supreme Court has upheld a union’s associational standing where neither the “claims nor the relief sought required the District Court to consider the individual circumstances of any aggrieved [union] member” and “[t]he suit raise[d] a pure question of law.” Brock, 477 U.S. at 288; see also, Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (holding that the Democratic Party had standing to assert the rights of members prevented from voting by imposition of a new photo ID law). Here, the Conference seeks to intervene
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to support the nationwide scope of relief and intends to raise only raises legal questions that are not contingent on evidence from a specific city. (See, Intervenor’s Compl., Ex. 1 to Mot. to Intervene, ¶¶ 91-154.) Furthermore, the Conference reassures the Court that its intervention will not require individualized proof or other additional evidence. (See, Reply in Supp. of Pl.’s Mot. for Partial Recons., at 11.) As its complaint reflects questions of law, the Conference has established associational standing and therefore can represent the interests of its members who may suffer an impending injury caused by the defendant’s acts, which injury may be remedied by a favorable judicial decision. See, Hunt, 432 U.S. at 343; Bauer, 620 F.3d at 708. This is sufficient to demonstrate standing. See, ibid.
2. Intervention as of Right a. Legal Standard
In order to intervene as of right, the U.S. Conference of Mayors must satisfy four requirements: (1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action. Reich, 64 F.3d at 321 (quotation omitted). “The burden is on the party seeking to intervene of right to show
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that all four criteria are met.” Reid L. v. Illinois State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002) (citing Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985)). Failure to satisfy any one factor mandates denial of the petition. United States v. City of Chicago, 908 F.2d 197, 199 (7th Cir.1990), cert. denied, 498 U.S. 1067 (1991). The Court analyzes the four factors, although it does so out of sequence for reasons that will become apparent.
b. Timeliness Turning to the first requirement, “[t]imeliness is to be determined from all the circumstances.” Nat’l Ass’n for Advancement of Colored People v. New York, 413 U.S. 345, 366 (1973). Such a determination is committed to the sound discretion of the district judge. Ibid. The Seventh Circuit has characterized the test as “essentially one of reasonableness,” stating that “potential intervenors need to be reasonably diligent in learning of a suit that might affect their rights, and upon so learning they need to act reasonably promptly.” Reich, 64 F.3d at 321 (quotation omitted). Although the assessment of timeliness is made under the totality of the circumstances, the Court should consider four factors: “(1) the length of time the intervenor knew or should have known of his or her interest in this case; (2) the prejudice to the original
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party caused by the delay; (3) the resulting prejudice to the intervenor if the motion is denied, and (4) any unusual circumstances.” Ragsdale, 941 F.2d 501, 504 (7th Cir. 1991) (citing South v. Rowe, 759 F.2d 610, 612 (7th Cir. 1985)). “In making this determination, we must also consider the prejudice to the original parties if intervention is permitted and the prejudice to the intervenor if his motion is denied.” Reich, 64 F.3d at 321 (citation omitted).
The Conference argues that its Motion to Intervene is timely because it did not recognize a need to intervene, nor could it reasonably have been expected to, until September 26, 2017, when the Attorney General filed a motion to stay arguing that Chicago did not have standing to sustain the nationwide injunction. The Conference appeared before the Court two days later and, after securing leave, filed its motion to intervene eight days later. (See, Mot. to Intervene, ¶ 19.) The Attorney General argues that the Conference knew or should have known that its putative interests were at stake in this litigation from the filing date of this lawsuit, August 7, 2017, and thus was required to intervene from the beginning (or at least much earlier).
The Court finds the Conference’s Motion timely. Timeliness is not determined from “the moment the suit is filed or even at
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the time they learn of its existence,” but from “the time the potential intervenors learn that their interest might be impaired.” Reich, 64 F.3d at 321 (citing United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989); Rowe, 759 F.2d at 612); but see, United States v. City of Chicago, 908 F.2d 197, 199 n.1 (7th Cir. 1990) (noting that courts should still consider the length of time the intervenor knew or should have known of his interest in the case). Here, the Conference persuasively argues that the Attorney General’s motion to stay was its first indication of potential impairment to its members’ interests. Indeed, an earlier intervention attempt would likely have been dead on arrival, as it would have been difficult to argue that Chicago was an inadequate representative of the Conference’s members’ interests. See, Flying J, 578 F.3d at 572 (holding that intervention was timely even after judgment where state attorney general decided not to pursue appeal because “[h]ad the association sought to intervene earlier, its motion would doubtless (and properly) have been denied on the ground that the state’s attorney general was defending the statute . . . .”); Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640, 659 (7th Cir. 2013) (when “the prospective intervenor and the named party have the same goal, a presumption exists that representation is adequate”) (alterations and quotation
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Case: 1:17-cv-05720 Document #: 125 Filed: 11/16/17 Page 20 of 31 PageID #:1765
omitted). In the same vein, the Seventh Circuit in Reich found intervention timely where the intervenors moved to intervene as soon as they discovered the other party was inadequate, reasoning that “we do not expect a party to petition for intervention in instances in which the potential intervenor has no reason to believe its interests are not being properly represented; we went so far as to suggest that the potential intervenor would be laughed out of court.” Reich, 64 F.3d at 322. Nevertheless, even using the time from filing to intervention as the lodestar, the approximately three-month interim is reasonably timely under the circumstances, especially in view of the untimely intervention cases cited by the Attorney General involving intervention attempts many years after the action was filed. See, CE Design Ltd. v. King Supply Co., 791 F.3d 722, 726 (7th Cir. 2015); Larson v. JP Morgan Chase & Co., 530 F.3d 578, 583-84 (7th Cir. 2008); Sokaogon Chippewa Community. v. Babbitt, 214 F.3d 941, 945 (7th Cir. 2000); United States v. City of Chicago, 908 F.2d 197, 197-200 (7th Cir. 1990).
The Attorney General also contends that the motion to intervene is untimely because the Conference chose to participate as an amicus at the beginning of the litigation and cannot now alter that decision after a favorable ruling. The
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Attorney General implies that the Conference held back on

intervention due to gamesmanship – that the Conference waited to

see how the Court would rule on Chicago’s motion for a

preliminary injunction before moving to intervene because it did

not want to be bound by any unfavorable judgment. However, it

is doubtful that this was the motivation for the Conference’s

later intervention, as the individual member cities may not be

bound by an unfavorable decision regardless.

(See,

Section II.B.1, supra.) Secondly, the Conference’s asserted

reason for waiting – its belief that Chicago was adequately

representing its members’ interests – are colorable. Indeed,

other cases have found intervention later in the litigation

appropriate where a specific event revealed the need to

intervene. For example, in United Airlines, Inc. v. McDonald,

the Supreme Court held that intervention was timely on the

rationale that “[a]s soon as it became clear to the respondent

that the interests of the unnamed class members would no longer

be protected by the named class representatives, she promptly

moved to intervene to protect those interests.”

United

Airlines, 432 U.S. 385, 394 (1977).

In determining timeliness, “the Court must assess the

possible prejudice to the parties.” Zurich Capital Mkts., Inc.

v. Coglianese, 236 F.R.D. 379, 384 (N.D. Ill. 2006) (citing

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Reich, 64 F.3d at 322). Intervention at this time in the

proceeding does not significantly prejudice the Attorney

General. Although the Court has made substantive rulings, the

litigation is not at an advanced stage, and the Attorney General

has yet to answer the Complaint.

See, ibid (granting

intervention, noting that “any prejudice to ZCM that would

result from the Liquidator’s intervention would result simply by

virtue of the Liquidator’s involvement in the case, not from the

Liquidator’s delay in moving to intervene”). Any prejudice

caused by delay is further diminished by the Conference’s

assertion that it will not seek to add any new legal issues into

the case nor adduce substantial evidence from individual

members. (See, Reply in Supp. of Pl.’s Mot. for Partial

Recons., at 11.) “[I]n the absence of any indication of

prejudice . . . , the motion cannot be adjudged untimely as a

matter of law. We don’t want a rule that would require a

potential intervenor to intervene at the drop of a hat; that

would just clog the district courts with motions to intervene.”

Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1027 (7th

Cir. 2006). On the other hand, there is little prejudice to the

Conference if intervention is denied as it could bring its own

litigation. The Court does not find any significant unusual

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circumstances present to either support or deny intervention. Thus, on balance, the Court finds timeliness satisfied.
c. Lack of Adequate Representation Next, an intervenor must demonstrate a lack of adequate representation. This requirement is met “if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n. 10 (1972) (citation omitted). “However, when the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors, the representative is presumed to adequately represent their interests unless there is a showing of gross negligence or bad faith.” Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (citations omitted). The Conference argues that the Attorney General’s motion for a stay of the nationwide injunction specifically challenges Chicago’s ability to represent the Conference and its members’ interests. The law requires a high threshold showing of inadequacy where a governmental body, like Chicago, is a party to the litigation. However, that high threshold only applies where the “governmental body or officer [is] charged by law with representing the interests of the proposed intervenor.” Keith,
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764 F.2d at 1270 (citations omitted). Here, the high threshold

is inapplicable because Chicago as a governmental entity is not

charged by law with representing the interests of other

Conference member cities.

Since the high threshold is

inapplicable, the burden is “minimal” and has been met here.

The Attorney General’s challenge to Chicago’s ability to pursue

a nationwide injunction for member cities of the Conference is

sufficient to meet this minimal burden. See, Trbovich, 404 U.S.

at 538 n. 10.

d. Interest Relating to the Subject Matter of the Action

The Court next analyzes whether the Conference has a

sufficient interest in the subject matter of the action.

Although “[t]he ‘interest’ required by Rule 24(a)(2) has never

been defined with particular precision,” it must be “a direct,

significant legally protectable interest.” Sec. Ins. Co. of

Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir.

1995); Am. Nat. Bank & Tr. Co. of Chi. v. City of Chi., 865 F.2d

144, 146 (7th Cir. 1989) (quotation omitted). The necessary

interest is “something more than a mere ‘betting’ interest, but

less than a property right.” Schipporeit, 69 F.3d at 1380–81

(internal citations omitted). The central inquiry considers

“the issues to be resolved by the litigation and whether the

potential intervenor has an interest in those issues.” Reich,

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64 F.3d at 322 (citations omitted). “Whether an applicant has an interest sufficient to warrant intervention as a matter of right is a highly fact-specific determination, making comparison to other cases of limited value.” Schipporeit, 69 F.3d at 1381 (citations omitted).
The Conference contends that it and its members have an interest in protecting their local law enforcement decisions and priorities from being compromised by the three conditions the Attorney General seeks to impose on the 2017 Byrne JAG grant. (See, Mot. to Intervene, ¶ 15.) The Conference attached to their complaint a list of their “2017 elected and appointed leadership,” including information on whether a particular member is slated to receive a Byrne JAG grant allocation. (See, Ex. A to Intervenor’s Compl.) Of the 81 cities listed, 70 cities anticipate receiving a 2017 Byrne JAG grant allocation. (Ibid.) The Attorney General does not argue the interest factor for intervention. Based on each individual city member’s ability to bring its own lawsuit asserting the same interest as Chicago and the Conference’s adoption of the sanctuary city resolutions, the Court finds the interest requirement met.
e. Potential Impairment of the Conference’s Interest Finally, the Court must analyze whether the Conference would face “potential impairment, as a practical matter, of that
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interest by the disposition of the action.” Reich, 64 F.3d at 321 (quotation omitted). “The existence of ‘impairment’ depends on whether the decision of a legal question involved in the action would as a practical matter foreclose rights of the proposed intervenors in a subsequent proceeding.” Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982) (citation omitted).
The Conference argues that it and its members’ ability to protect their interests would be impaired without intervention because they would potentially have to file over a thousand additional lawsuits to vindicate the same rights at issue here. (See, Mot. to Intervene, ¶ 16.) However, the Attorney General correctly points out that under the Conference’s theory, it should only need to file one additional lawsuit – its own – in order to support a nationwide injunction to protect these interests.
The Attorney General contends that the Conference cannot demonstrate impairment because its rights will not be prejudiced by a judgment in the DOJ’s favor. As the Conference will not be bound by the judgment of this Court, it will be free — if Chicago loses on appeal – to bring litigation challenging the notice and access conditions and seeking a nationwide injunction. However, the fact that the Conference may bring its
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own lawsuit is not determinative. “[T]he possibility that the would-be intervenor if refused intervention might have an opportunity in the future to litigate his claim has been held not to be an automatic bar to intervention.” FEMA, 660 F.3d at 985 (citation omitted).
“Impairment under the meaning of Rule 24(a)(2) depends on whether a ruling on a legal question would as a practical matter foreclose the intervenor’s rights in a subsequent proceeding. Such foreclosure is measured by the general standards of stare decisis.” Revelis v. Napolitano, 844 F.Supp.2d 915, 925 (N.D. Ill. 2012) (internal citation omitted). A decision of a district court is not sufficient to establish impairment based on stare decisis. See, Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 532 (7th Cir. 1988) (“[T]he opinion of a single district judge rarely yields an effect broader than the force its reasoning carries. Such an influence is not reason enough to complicate litigation by adding [] parties. . . .”). What is more, intervention based on stare decisis should be granted infrequently:
When should the prospect of an appellate decision cutting off further litigation in the circuit (or the nation as a whole, if the Supreme Court decides the case) be enough to support intervention? “Infrequently” is one response, an essential one if cases are to remain manageable. Trade associations, labor unions, consumers, and many others may be
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affected by (and hence colloquially “interested” in) the rules of law established by appellate courts. To allow them to intervene as of right would turn the court into a forum for competing interest groups, submerging the ability of the original parties to settle their own dispute (or have the court resolve it expeditiously). Participation as amicus curiae will alert the court to the legal contentions of concerned bystanders, and because it leaves the parties free to run their own case is the strongly preferred option. Id. at 532–33. Accordingly, the Conference’s involvement as amicus curiae is “strongly preferred,” especially considering that any delay here is uniquely harmful given the timeline of the Byrne JAG awards. See, ibid. The nationwide injunction currently in force is sufficient to protect the interests of the Conference’s members and, regardless, a Seventh Circuit decision overturning the nationwide injunction would not suffice to show the potential impairment necessary for intervention as of right. An appellate judgment in the DOJ’s favor that Chicago lacks standing for a nationwide injunction will not preclude or impair the Conference’s ability to bring a subsequent action for a nationwide injunction enjoining the three conditions at issue. See, ibid. The standing issue present for Chicago is not present for the Conference and, thus, this is not a case where the “parties are free to relitigate but are unlikely to get anywhere.” Ibid. (citing Colby v. J.C. Penney Co., 811 F.2d 1119, 1122–24 (7th Cir.1987)). As to the Seventh Circuit’s
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ruling on appeal of the notice and access conditions, the Conference’s participation as amicus curiae is adequate to make its legal arguments. The Court finds that the Conference cannot show that a Seventh Circuit ruling will impair or impede its ability to bring an action for a nationwide injunction on behalf of its members. Accordingly, the Court finds the Conference unable to demonstrate potential impairment to its (or its members’) interests at this time.
* * * Because the Conference is unable to demonstrate impairment to its interests, we deny the Conference’s Motion to Intervene as of right. See, United States v. City of Chi., 908 F.2d 197, 199 (7th Cir.1990), cert. denied, 498 U.S. 1067 (1991).
3. Permissive Intervention The Conference moves in the alternative for this Court to allow it to intervene permissively. The court may permit anyone to intervene who, “[o]n timely motion,” “has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3). Permissive intervention is a practical inquiry. In Justice Posner’s estimation, assuming its
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prerequisites have been met, “Rule 24(b) [is] just about economy

in litigation.” FEMA, 660 F.3d at 987.

The timeliness of the Conference’s Motion to Intervene has

been established. (See, Section II.B.2.b, supra.) Further, the

Court concludes that there exists a common question of law upon

which to base intervention, because the Conference’s claims

involve the same legal questions as Chicago’s claims. See, FED.

R. CIV. P. 24(b)(1).

Accordingly, the prerequisites for

permissive intervention are met.

The Conference argues that permissive intervention is

proper here because it intends to advance the exact same claims

that Chicago has already advanced, such that intervention will

cause no delay or prejudice. It further argues that permissive

intervention supports judicial economy by obviating the need for

other member cities to bring lawsuits to adjudicate the exact

same issues before the Court. Additionally, the Conference

urges that intervention would resolve the legal question of

standing, obviating the need for the parties and the Seventh

Circuit to expend resources addressing it.

Permissive intervention is discretionary and the Court

finds it inappropriate in this case. Intervention here is

premature: The interests of the Conference’s member cities are

currently protected via the nationwide injunction, and its

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members’ interests have so far been given a voice via the amicus curiae device. Unless and until the status of the nationwide injunction changes, there is no reason to permit an intervention that will further complicate this litigation. The addition into the case of the Conference and its member cities, while it will not significantly augment the legal or evidentiary issues so as to prejudice the Attorney General, does pose the prospect of needlessly complicating a case that has already engendered significant motions practice.
Accordingly, the Court denies the Conference’s Motion for Permissive Intervention.
III. CONCLUSION For the reasons stated herein, Chicago’s Motion for Partial Reconsideration [ECF No. 99] is denied. The Conference’s Motion to Intervene [ECF No. 91] is denied.
IT IS SO ORDERED.

Dated: November 16, 2017

Harry D. Leinenweber, Judge United States District Court

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 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CITY OF CHICAGO, Plaintiff-Appellee, v.
JEFFERSON B. SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES, Defendant-Appellant.

No. 17-2991

REPLY IN SUPPORT OF DEFENDANT-APPELLANT’S MOTION FOR PARTIAL STAY OF PRELIMINARY INJUNCTION PENDING APPEAL

Chicago’s opposition to our motion for a partial stay underscores the district court’s error in issuing an injunction that applies to entities other than Chicago—the only plaintiff in this case. Chicago does not dispute that an injunction limited to the City of Chicago would provide it with complete relief. This Court has already held that, in such circumstances, a court lacks authority to grant broader relief to entities that are not parties to the litigation. Chicago likewise provides no explanation for why nonparties should be entitled to the benefits of a favorable decision without facing the burdens of an adverse decision, nor can it justify foreclosing decisions by other courts on the legal issue presented here. I. Chicago has no standing to seek relief for nonparties.
This Court squarely held in McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997), that because no class had been certified and the plaintiff’s “interests c[ould] be protected by an injunction that prevents the City from demolishing their properties,” the district court lacked authority to “enjoin the entire program.” Id. at 555. The City apparently believes that this is a principle that applies when Chicago is a defendant but not when it is a plaintiff. Chicago asserts—without citation—that this Court’s unambiguous ruling in fact rested on the conclusion that “plaintiffs brought factdependent claims, which even if meritorious would not have proven the ordinance unlawful as to other plaintiffs in different circumstances.” Opp’n 13. This Court said nothing of the kind. Instead, the basis of this Court’s reasoning was that the plaintiffs in that case “c[ould] be protected by an injunction forbidding fast-track demolition of

their properties.” McKenzie, 118 F.3d at 555. Here, similarly, Chicago can be protected by an injunction forbidding the inclusion of the notice and access conditions in connection with its own grant; indeed, Chicago does not even contend otherwise.
Likewise, in Scherr v. Marriott International, Inc., this Court held that the plaintiff did not have standing to seek an injunction that went beyond remedying her personal injury, even though the defendant allegedly committed the same legal violation more broadly. 703 F.3d 1069 (7th Cir. 2013). This Court reasoned that although the plaintiff had established that she was suffering an imminent injury from the defendant’s use of spring-hinged door closers at one particular hotel, she had not established that she would be imminently injured by the defendant’s use of the same door closers at the defendant’s other hotels, and thus she did not have standing to pursue injunctive relief relating to other hotels. Id.
The government’s position is not, as Chicago suggests, that federal courts lack authority “to order injunctive relief that incidentally also benefits others besides the plaintiff.” Opp’n 10. The imposition of nationwide relief here does not “incidentally” benefit entities other than Chicago. Rather, the award of relief beyond Chicago only benefits other jurisdictions, and does nothing to remedy Chicago’s own injury. That was the jurisdictional problem in McKenzie, and it is the same jurisdictional problem here.
2

The City appears not to perceive the relevant inquiry when it declares that the Attorney General’s Article III argument “ignores that he is a party in this case.” Opp’n 1 (emphasis in original). The issue is not whether the defendant is a party. Indeed, any injunction against the Attorney General would be very problematic if he were not a party. The relevant issue under Article III is whether an injunction would remedy any cognizable injury suffered by the plaintiff.
Unable to distinguish binding precedent from this Court, Chicago cites cases from various courts in which broad injunctions have been upheld. But Chicago does not dispute our assertion that those cases “did not ‘address the relevant issues.’ ” Opp’n 12 (quoting Mot. 13). Instead, Chicago urges that this Court should rely on those cases as if they had issued holdings on the subject, “in light of federal courts’ obligation to address their own jurisdiction, sua sponte if necessary.” Id. In other words, Chicago cites for their persuasive value decisions that do not address the issue presented on the theory that those courts considered the issue and accepted the City’s position. It is unclear how these nonexistent analyses could be persuasive, and the scope of proper relief is of course to some extent fact-dependent. See McKenzie, 118 F.3d at 555 (observing that “[s]ometimes a judge may overhaul a statutory program without a class action,” such as when “it is not possible to award effective relief to the plaintiffs without altering the rights of third parties”). More fundamentally, the Supreme Court has “repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996). And
3

the Article III issue raised here has not “gone essentially unmentioned,” Opp’n 12,
but rather has been expressly addressed in a holding of this Court. See McKenzie, 118
F.3d at 555 n.* (“[T]he injunction exceeded the district judge’s powers under Article
III of the Constitution . . . .”).
Chicago similarly errs in relying on Trump v. International Refugee Assistance Project,
137 S. Ct. 2080 (2017) (per curiam), in which the majority opinion contains no
discussion relevant to the issue presented here. Chicago instead contends that
because the dissenters—the only Justices to mention the issue raised here—agreed
with the government’s position, “[p]lainly, a majority of the Court rejected that
jurisdictional argument.” Opp’n 12 (emphasis in original). There is no basis for
presuming that the Supreme Court resolved the issue without discussing it, much less
for reading the case to overrule sub silentio this Court’s decision in McKenzie. The
majority was under no obligation, in a discretionary assessment of whether a stay was
appropriate, to reach every issue, and indeed emphasized its discretion in balancing the equities. International Refugee Assistance Project, 137 S. Ct. at 2087.1
1 Chicago also seeks to rely on the Fourth Circuit’s conclusion in International Refugee Assistance Project that “[p]laintiffs [were] dispersed throughout the United States.” International Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017), vacated as moot, No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017)) (emphasis added). The City urges that “[t]he local governments affected by the unlawful conditions here are also ‘dispersed throughout the United States.’ ” Opp. 15 n.7 (emphasis in original). The point, however, is that the other local governments are not plaintiffs in this case. The only plaintiff here is the City of Chicago. Moreover, while the Fourth Circuit concluded that the plaintiffs’ injury under the Establishment Clause could not be fully
4

II. Equitable principles also favor a partial stay. Chicago’s opposition also underscores the inequities inherent in its position.
The same issue presented here is being considered by district courts in other circuits. See City of Philadelphia v. Sessions, No. 17-3894 (E.D. Pa.); City & County of San Francisco v. Sessions, No. 17-4642 (N.D. Cal.). In Chicago’s view, a district court in Illinois can preempt the rulings in other circuits—but only if it rules for the City. No one suggests that a ruling in the federal government’s favor in the Northern District of Illinois would be determinative in a suit brought by Philadelphia in the Eastern District of Pennsylvania. Chicago’s theory of district court authority provides challengers to government action with all the benefits of a class action without any of the obligations or burdens, including assurance that other parties will be bound by an adverse judgment.
The operation of this theory is highlighted by the amicus briefs filed by California and Illinois. They urge that the injunction should apply to their grants but would never suggest that a ruling in the federal government’s favor would preclude suits in which they were parties. Similarly, if another district court were to issue a nationwide injunction against the condition on which the government prevailed, Chicago would be the beneficiary despite having lost on the issue in its own case.
redressed without relief extending beyond the parties to the case, Chicago makes no effort to assert that its own injury cannot be redressed without an injunction extending to nonparties.
5

Chicago’s discussion of class actions, relegated to a footnote, acknowledges that Rule 23(b)(2) was designed to use the class-action mechanism in circumstances in which similarly situated entities seek injunctive relief. Opp’n 9-10 n.3. The amendments to Rule 23 that Chicago cites were designed to “provide[ ] that all class actions maintained to the end as such will result in judgments including those whom the court finds to be members of the class, whether or not the judgment is favorable to the class.” Fed. R. Civ. P. 23 (1966 Advisory Committee Notes) (emphasis added). Here, Chicago has not sought class certification, but makes quite clear that it seeks an injunction in favor of nonparties who would not be bound by a judgment in the federal government’s favor.
Chicago also complains of the possibility of a “proliferation of needless lawsuits.” Opp’n 19. But litigation in other fora would not be “wasteful” or cause “the judiciary [to] be harmed,” id.; rather, precluding such litigation would “have a detrimental effect by foreclosing adjudication by a number of different courts and judges.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 644 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Chicago provides no response to this reasoning.
Chicago asserts that “a stay would waste this Court’s resources” because the government’s argument “may be mooted” by the intervention of the U.S. Conference of Mayors, whose motion to intervene was pending at the time of Chicago’s
6

opposition. Opp’n 19. On November 16, 2017, that motion was denied by the district court. Dkt. 125.
The critical point on the balance of harms in this case is one that is not disputed: granting the stay would cause no harm, irreparable or otherwise, to Chicago—the only plaintiff in this case—while the nationwide injunction puts the federal government to the choice of issuing awards subject to the injunction or delaying the awards to the detriment of recipients across the country. A partial stay is warranted.

NOVEMBER 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOEL R. LEVIN Acting United States Attorney
MARK B. STERN
s/ Daniel Tenny DANIEL TENNY KATHERINE TWOMEY ALLEN (202) 514-1838
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7215 Washington, DC 20530
7

CERTIFICATE OF COMPLIANCE I hereby certify that this reply satisfies the type-volume limitation in Rule 27(d)(2)(C) because it contains 1,676 words. This reply was prepared using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced typeface.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
s/ Daniel Tenny Daniel Tenny

 
 NO. 17-2991

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IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
CITY OF CHICAGO Plaintiff-Appellee
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL OF THE UNITED STATES
Defendant-Appellant
On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 1:17-cv-05720, The Honorable Harry D. Leinenweber, Judge

BRIEF OF STATES OF CALIFORNIA AND ILLINOIS AS AMICI CURIAE IN SUPPORT OF CITY OF CHICAGO’S RESPONSE TO DEFENDANT-
APPELLANT’S MOTION FOR PARTIAL STAY OF PRELIMINARY INJUNCTION PENDING APPEAL
AND AGAINST THE STAY

XAVIER BECERRA

1515 Clay Street, 20th Floor

Attorney General of California

P.O. Box 70550

ANGELA SIERRA

Oakland, CA 94612-0550

Senior Assistant Attorney General Telephone: (510) 879-0173

SATOSHI YANAI

Fax: (510) 622-2270

Supervising Deputy Attorney General Email: Lisa.Ehrlich@doj.ca.gov

SARAH E. BELTON

Attorneys for Amicus Curiae

LEE I. SHERMAN

State of California

LISA C. EHRLICH*

*Counsel of Record

Deputy Attorneys General

Additional Counsel on Next Page

State Bar No. 270842

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LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601 Attorney for Amicus Curiae State of Illinois

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TABLE OF CONTENTS Page
Introduction and Interest of Amici Curiae..................................................... 1 Argument ....................................................................................................... 2
I. Defendant is Unlikely to Succeed Under the Separation of Powers................................................................................... 3
II. Defendant Would Not Be Irreparably Harmed ......................... 7 III. The Stay Would Substantially Injure Other Parties
Interested in the Proceeding .................................................... 10 IV. The Stay Would Harm the Public Interest .............................. 15 Conclusion ................................................................................................... 16
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TABLE OF AUTHORITIES Page
CASES Centro Tepeyac v. Montgomery Cty.
722 F.3d 184 (4th Cir. 2013) (en banc) ................................................... 16 City of Arlington, Tex. v. FCC
569 U.S. 290 (2013)....................................................................................4 Gonzales v. Oregon
546 U.S. 243 (2006)....................................................................................7 In re Aiken County
725 F.3d 255 (D.C. Cir. 2013)....................................................................5 Nken v. Holder
556 U.S. 418 (2009)............................................................................... 2, 3 Pennhurst State Sch. & Hosp. v. Halderman
451 U.S. 1 (1981)........................................................................................6 Whitman v. Am. Trucking Ass’ns
531 U.S. 457 (2001)....................................................................................7 STATUTES 20 United States Code
§ 1416(e)(1)(C) ...........................................................................................7
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TABLE OF AUTHORITIES (continued)

Page

34 United States Code § 10102 .......................................................................................................6 § 10102(a)(6) ..............................................................................................4 § 10153 .......................................................................................................6 § 10156 .................................................................................................... 13 § 10156(a) ...................................................................................................5 § 10156(a)(2) ........................................................................................... 13 § 10156(b)(1) ........................................................................................... 14 § 10156(d)(1) ........................................................................................... 14 § 10156(d)(2) ..............................................................................................5 § 30307(e)(2) ..............................................................................................6
California Government Code § 7282.5(a) ............................................................................................... 12 § 7284 et seq. ........................................................................................... 12 § 7284.2(b)-(c) ......................................................................................... 13 § 7284.6(a)(1)(C) ..................................................................................... 12 § 7284.6(b)(5) .......................................................................................... 12 § 7284.10(a) ............................................................................................. 12
California Values Act ................................................................................... 12
CONSTITUTIONAL PROVISIONS
United States Constitution, Art. I § 8, cl. 1 .....................................................4
OTHER AUTHORITIES
7 Code of Federal Regulations § 550.10 .........................................................7
28 Code of Federal Regulations § 66.12 .........................................................6
34 Code of Federal Regulations § 80.12 .........................................................7
45 Code of Federal Regulations § 74.14 .........................................................7
2017 California Local JAG Allocations ....................................................... 14

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TABLE OF AUTHORITIES (continued)

Page

2017 Illinois Local JAG Allocations............................................................. 15
H.R. Rep. No. 109-233 (2005) ........................................................................5
Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990) ..................................................................5
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733, 1751 ...............................................................5

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INTRODUCTION AND INTEREST OF AMICI CURIAE California and Illinois, as amici curiae, urge the Court to deny Defendant-Appellant Attorney General Jefferson B. Sessions’ motion for partial stay of the nationwide preliminary injunction (“the Motion”) against the new substantive conditions that Defendant has added to the FY 2017 Edward Byrne Memorial Justice Assistance Grant (“JAG”) program solicitations. No. 17-02991, ECF No. 8-1 (7th Cir. Oct. 13, 2017). These conditions require applicant jurisdictions to enact an affirmative “statute,” “rule,” “regulation,” “policy,” or “practice” that is “designed to ensure” that (a) federal immigration enforcement agents with the Department of Homeland Security (“DHS”) have access to detention facilities to interview inmates who are “aliens” or believed to be “aliens” (the “Access Condition”); and (b) upon its request, DHS receives 48 hours’ advance notice regarding the scheduled release date of an “alien” (the “Notification Condition”). California, along with other jurisdictions, is litigating its own challenge to the conditions, and has a significant interest in the outcome of the proceedings before this court. As detailed below, California law enforcement is entitled to receive $28.3 million and Illinois law enforcement is entitled to receive $6.5 million in Fiscal Year 2017 JAG funding—money that Defendant’s improperly imposed conditions place at risk.
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Allowing the Defendant to impose these conditions with respect to all applicant jurisdictions besides Chicago would irreparably harm California, Illinois, and these other jurisdictions. If, in light of these conditions, state and local jurisdictions do not accept the funds authorized by the JAG statute and appropriated by Congress, important programs that serve critical criminal justice needs will be cut. And if these conditions pressure jurisdictions to change their public-safety oriented laws and policies in order to ensure they comply with these unconstitutional conditions, those jurisdictions will have abandoned policies that they have found to be effective in their communities for ensuring public safety. Moreover, removing the nationwide injunction would perpetuate the constitutional injury for those jurisdictions that lack sufficient resources to contest these conditions or whose JAG funding is less than the likely cost of litigating an independent challenge, while effectively allowing those jurisdictions with the resources to successfully oppose these conditions in court the ability to forego complying with them.
ARGUMENT Although Plaintiff bore the burden in the district court to satisfy the four-factor test to justify the preliminary injunction, Defendant now bears the burden to justify a stay of that injunction pending appeal. Nken v.
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Holder, 556 U.S. 418, 433-34 (2009). But Defendant cannot satisfy any of the four factors, let alone all of them. In particular, Defendant cannot show that it is “likely to succeed on the merits” or that it “will be irreparably injured absent a stay,” the two “most critical” factors. Id. at 434. The stay Defendant requests would also “substantially injure the other parties interested in the proceeding” and harm “the public interest.” Id. I. DEFENDANT IS UNLIKELY TO SUCCEED UNDER THE SEPARATION
OF POWERS Notably, in seeking a stay of the injunction, Defendant does not argue that it is likely to succeed on the merits of Chicago’s ultra vires and separation of powers claims. Instead, in his Motion, Defendant challenges the appropriateness of a nationwide injunction. See Mot. at 10-18. This attempt to skirt a discussion of the merits should fail in the first instance because the conditions enjoined by the district court plainly violate the separation of powers. That injury does not stop with Chicago, but “is national in scope,” and extends to amici and every jurisdiction in the country that receives JAG funding. Order Denying Def’s Mot. to Stay, No. 1:17-cv05720, ECF No. 98 at 5 (N.D. Ill. Oct. 13, 2017) (the “Order”). For the reasons discussed herein, if the Court concludes that these conditions are likely to be found unconstitutional, there is no reason to subject every
3

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jurisdiction but Chicago to this constitutional injury, and many reasons why a nationwide injunction is appropriate and necessary. See id. at 11, 14-15 (“An injunction more restricted in scope would leave the Attorney General free to continue enforcing the likely invalid conditions against all other Byrne JAG applicants,” which “flies in the face of the rule of law.”).
As the district court identified in the preliminary injunction order, there are serious structural reasons why the obscure administrative provision in 34 U.S.C. § 10102(a)(6) (“Section 10102”) does not provide authority to add these conditions. In addition, there are separate and independent reasons why Defendant’s imposition of the Access and Notification Conditions is unconstitutional, thus making it unlikely that Defendant will succeed on appeal. It is to Congress that the U.S. Constitution grants the spending power, Art. I § 8, cl. 1, and it follows that Defendant cannot unilaterally insert conditions into grant awards without authorization from Congress. City of Arlington, Tex. v. FCC, 569 U.S. 290 (2013) (an agency’s “power to act and how they are to act is authoritatively prescribed by Congress”). Because Congress has neither added the Access and Notification Conditions through statute, nor given to Defendant the authority to require JAG recipients to comply with such conditions, the conditions violate the Separation of Powers and must fall.
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First, the text, purpose, and legislative history of the JAG authorizing statute do not provide Defendant with the authority to require grantees to comply with the Access and Notification Conditions. The new conditions upset the carefully crafted Congressional design, under JAG, that “each State” and “each unit of local government” receives an allocation according to a precise statutory formula. 34 U.S.C. § 10156(a), (d)(2) (emphasis added); cf. In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013) (despite “policy reasons . . . even the President does not have the unilateral authority to refuse to spend the funds”). The new conditions additionally contradict the overarching goal stated by Congress when adopting the current version of the JAG program: to provide state and local governments with “more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution” to local law enforcement. H.R. Rep. No. 109-233, at 89 (2005). Further, the legislative history reveals Congressional intent not to condition JAG funding on immigration enforcement related conditions, as shown in 2006 when Congress repealed conditions requiring participation in federal immigration enforcement.1
1 See Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733, 1751
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Congress knows how to add conditions by statute, has proven capable of doing so in the JAG authorizing statute, and has evidently chosen not to add the Access or Notification Conditions that Defendant seeks to inject here.2
Second, USDOJ has claimed that these new conditions are permitted under 34 U.S.C. §10102, allowing the agency to add “special conditions on all federal grants.” But Section 10102 does not endow Defendant or USDOJ with the authority they claim. In 2006, when this provision was amended to permit OJP to “plac[e] special conditions on all grants,” the term “special conditions” had a precise meaning. According to a USDOJ regulation in place at the time, it could impose “special grant or subgrant conditions” on “high-risk” or struggling grantees. 28 C.F.R. § 66.12 (removed Dec. 25, 2014). This meaning of special conditions is entirely consistent with other federal statutes and regulations that have also historically identified “special
(1991) (repealed 2006) (required the chief executive office of each state receiving JAG funding to provide “certified records” of criminal convictions of aliens). 2 See 34 U.S.C. §§ 10153 (ministerial requirements and certification for JAG recipients to follow, including that jurisdictions comply with applicable laws); 20927 (permitting ten percent penalty on JAG funds for jurisdiction failing to “substantially implement” the Sex Offender Registration and Notification Act); 30307(e)(2) (permitting five percent penalty on JAG funds if a State fails to adopt national standards under the Prison Rape Elimination Act); see also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 23 (1981) (“When Congress intended to impose conditions on the grant of federal funds . . . it proved capable of doing so in clear terms.”).
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conditions” as those that federal agencies may place on particular high-risk grantees who have struggled or failed to comply with grant conditions in the past, and not on all grantees irrespective of performance. See, e.g., 20 U.S.C. § 1416(e)(1)(C); 7 C.F.R. § 550.10; 34 C.F.R. § 80.12 (removed Dec. 19, 2014); 45 C.F.R. § 74.14 (removed Dec. 19, 2014). It does not confer any ability to add the Access and Notification Conditions to JAG funds.
The particular meaning of the term “special conditions” in 2006, as referring to conditions for high-risk grantees, is no different today. Defendant’s attempt to transform this administrative provision into one providing limitless discretion to the agency disrupts well-settled and fundamental notions of statutory construction that Congress “does not . . . hide elephants in mouseholes,” and “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001); see also Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (“principles of our federal system . . . belie the notion that Congress would use an obscure grant of authority to regulate areas traditionally supervised by the States’ police power”). II. DEFENDANT WOULD NOT BE IRREPARABLY HARMED
Defendant laments that the JAG process is already significantly behind the timing of award grants from other years, creating irreparable harm. See
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Mot. at 19. Yet, the decision of when to send out solicitations and begin the 2017 process was entirely within Defendant’s control. Defendant was two to three months behind schedule in releasing the fiscal year 2017 JAG Solicitations when compared to fiscal year 2016. Even knowing it was already delayed, Defendant decided to add—for the first time in the three decade-long history of the various iterations of the JAG program—two completely new, substantive conditions that required jurisdictions to have affirmative policies in place. Moreover, it made this decision with no prior notice to applicants, and gave applicants no opportunity to comment on the new substantive changes to the program. In light of Defendant’s complete control over the schedule and form of the 2017 JAG program, its claim that there is irreparable injury to Defendant from delay is unavailing.
Nor does Defendant articulate any actual harm to itself from this delay. The harms from delay that Defendant cites are actually harms that would be suffered by the applicant entities (e.g. timely receipt of funding to support law enforcement activity, burdens on localities with relatively small budgets, disruption of state grant-making processes under which states issue subawards of Byrne JAG funds)—none of which would be suffered if Defendant chose to simply abide by the injunction and issue grant awards that do not include the enjoined conditions.
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Defendant also posits the additional harm from having to choose whether to impose further delay on applicants (which, as discussed, is not actually a harm to Defendant), and sending out the award grants without the enjoined conditions for the FY 2017 grant cycle. Defendant claims injury from the sacrifice of its ability to impose these conditions in 2017, see Mot. at 9, 19, but provides no further argument or evidence about what actual harm flows to Defendant from that outcome. This is because there is none. The injunction simply preserves the “status quo” of the JAG program as it has been administered for the last decade, the last time the JAG authorizing statute was amended to expressly eliminate immigration enforcement related conditions. See Order at 11. USDOJ does not and cannot point to actual harms it has suffered from not having these conditions as part of the program in the past.
This lack of harm is underscored by the fact that the injunction does not prevent cooperation with federal immigration efforts—the purported goal of the new substantive conditions. Nothing in the injunction prevents a jurisdiction from providing federal immigration officials access to its detention and correctional facilities (the goal of the Access Condition), nor from complying with federal notification requests (the goal of the Notification Condition). If it is true, as Defendant posits, that many
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jurisdictions have no problem with these conditions, then they will presumably provide this cooperation voluntarily, and again, Defendant would suffer no harm at all, much less irreparable harm. See Order at 12 (“[J]urisdictions remain free to adopt the substance of the notice and access conditions if they wish to do so.”). III. THE STAY WOULD SUBSTANTIALLY INJURE OTHER PARTIES
INTERESTED IN THE PROCEEDING While a stay is not necessary to prevent irreparable injury to Defendant, a stay would cause substantial injury to other parties interested in the proceeding—namely, the other applicant entities who await their award grants and are attempting to protect their constitutional rights. Defendant argues that a stay would allow it to issue awards with the Access and Notification Conditions to all other applicant entities, and then force them to each independently litigate the same legal issues already decided here on a compressed time frame (each would need a decision from a court before the 45-day window for accepting the grant award and the conditions), or forfeit their FY 2017 JAG funding while awaiting resolution of this case. See Mot. at 16. For example, Congress has appropriated $28.3 million in law enforcement funding to amicus curiae California and its political
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subdivisions pursuant to the JAG program, with $17.7 million going to the Board of State and Community Corrections (“BSCC”), the entity that receives the formula grant funds that are allocated to the State. BSCC disburses JAG funding using subgrants predominately to local jurisdictions throughout California to fund programs that meet the purpose areas identified in the JAG authorizing statute. Between fiscal years 2015-17, BSCC funded 32 local jurisdictions and the California Department of Justice. Some examples of California jurisdictions’ use of JAG funds include: (a) implementing educational programs to improve educational outcomes, increase graduation rates, and curb truancy; (b) providing youth and adult gang members with multi-disciplinary education, employment, treatment, and other support services to prevent gang involvement, reduce substance abuse, and curtail delinquency and recidivism; (c) implementing school-wide prevention and intervention initiatives for some of the county’s highest-risk students; (d) providing comprehensive advocacy and reentry services for juvenile probationers after disposition of their case to improve outcomes and reduce recidivism; (e) providing a continuum of alternatives to detention for juvenile offenders who do not require secure detention; and (f) funding diversion and re-entry programs for both minors and young adult
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offenders. Without fiscal year 2017 JAG funding, these types of programs will have to be cut in part or entirely.
Moreover, the California Legislature carefully crafted a statutory scheme that allows law enforcement resources to be allocated in the most effective manner to promote public safety for all people in California, regardless of immigration status, national origin, ancestry, or any other characteristic protected by California law. Local governments throughout the State have also enacted their own laws adopting similar policies. Most recently, Governor Edmund G. Brown Jr. signed the California Values Act, Cal. Gov’t Code § 7284 et seq., into law, which includes provisions that speak to law enforcement activities covered by the Access and Notification Conditions. The Values Act provides discretion to law enforcement agencies to comply with notification requests if certain conditions are met, and reaffirms procedural protections for inmates before they are subject to interviews with ICE. See Cal. Gov’t Code §§ 7282.5(a), 7284.6(a)(1)(C) (effective Jan. 1, 2018) [provisions on notification requests]; id. §§ 7284.6(b)(5), 7284.10(a) (effective Jan. 1, 2018) [provisions on allowing ICE access to jails]. Laws like the Values Act are intended to strengthen community policing efforts by encouraging undocumented victims to report crimes to local law enforcement so that perpetrators are apprehended before
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harming others. See id. § 7284.2(b)-(c) (finding that a “relationship of trust” between the State’s immigrant communities and LEAs is “central to public safety” and that “trust is threatened when state and local agencies are entangled with federal immigration enforcement”).
Thus, if state and local jurisdictions do not accept the funds authorized by the JAG statute and appropriated by Congress due to the grant conditions at issue in this case, important programs will need to be cut. And if these conditions pressure jurisdictions to change their public-safety oriented laws and policies in order to ensure they comply with unconstitutional conditions, they will have abandoned policies that state and local jurisdictions have found to be effective in their communities for ensuring public safety. As a result, States and localities will lose control of their ability to focus their resources on fighting crime rather than federal immigration enforcement, and the trust and cooperation that state laws and local ordinances are intended to build between law enforcement and immigrant communities will be eroded.
Finally, Congress constructed JAG as a formula grant that treats all applicants equally based upon a specific prescription set by Congress. See 34 U.S.C. § 10156. Congress guarantees to each state a minimum allocation of JAG funds. Id. § 10156(a)(2). In addition to determining the amount of
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money received by grantees within each state, Congress set forth how that money is to be shared between state and local jurisdictions, with 60 percent given directly to the state and 40 percent to local jurisdictions. Id. § 10156(b)(1), (d)(1). Thus, the amount and specific distribution of the awards is set by Congress, and dependent only on the factors set in federal law. Removing the nationwide injunction would effectively individualize JAG funding, even among jurisdictions in the same State, to allow those jurisdictions with the resources to successfully oppose these conditions in court the ability to forego complying with them, while allowing the constitutional injury of these conditions to persist as to those jurisdictions that lack sufficient resources to contest them. Specifically, many jurisdictions receive JAG funding in amounts significantly less than the likely cost of litigating an independent challenge to the conditions, particularly when Defendant is requiring such litigation to be on an incredibly compressed time schedule. For example, some California subgrants are for less than $50,000, and as USDOJ’s own data demonstrates many local jurisdiction grants are even lower, in the range of tens of thousands of dollars.3 When USDOJ discusses forcing each jurisdiction to
3 See, e.g., 2017 California Local JAG Allocations, https://www.bja.gov/Programs/JAG/
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independently litigate these challenges, it is requiring jurisdictions to make the untenable choice of forgoing JAG funding, complying with conditions already found unlawful, or rapidly litigating a challenge that likely would require resources in excess of the amount the jurisdiction stands to receive. Such an outcome defies notions of judicial economy and promotes the “unequal treatment of litigants.” See Order at 11, 14. It also upends the formula grant structure of the program in a manner that causes substantial harm and inequities to other interested parties. IV. THE STAY WOULD HARM THE PUBLIC INTEREST
A stay will harm the public interest because it will injure a substantial number of government entities, the public safety, and ultimately, state and local residents. The injunction in fact protects the status quo of the JAG program as it has existed for over a decade, while allowing the court to determine whether the new substantive conditions violate applicant jurisdictions’ constitutional rights. “[U]pholding constitutional rights surely serves the public interest”; indeed, the government “is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is
jag17/17CA.pdf (listing allocations as low as $10,000 - $11,000); 2017 Illinois Local JAG Allocations, https://www.bja.gov/Programs/JAG/jag17/17IL.pdf (same).
15

(26 of 30)
improved by such an injunction.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (en banc) (citation omitted).
CONCLUSION The Court should deny Defendant’s motion to stay the nationwide injunction pending appeal.
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Dated: October 18, 2017

Respectfully submitted,

XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General SATOSHI YANAI Supervising Deputy Attorney General SARAH E. BELTON LEE I. SHERMAN Deputy Attorneys General
/s/Lisa C. Ehrlich LISA C. EHRLICH Deputy Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0173 Fax: (510) 622-2270 Email: Lisa.Ehrlich@doj.ca.gov Attorneys for Amicus Curiae State of California

LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601 Attorney for Amicus Curiae State of Illinois

17

(28 of 30)
CERTIFICATE OF COMPLIANCE WITH FRAP RULE 32(a)(7), FRAP RULE 32(g) and CR 32(c) The undersigned counsel of record for the Amici Curiae, State of California and Illinois, furnishes the following in compliance with F.R.A.P. Rule 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 4031 words.
1

(29 of 30)

Dated: October 18, 2017

Respectfully submitted,
XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General SATOSHI YANAI Supervising Deputy Attorney General SARAH E. BELTON LEE I. SHERMAN Deputy Attorneys General
/s/Lisa C. Ehrlich LISA C. EHRLICH Deputy Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0173 Fax: (510) 622-2270 Email: Lisa.Ehrlich@doj.ca.gov Attorneys for Amicus Curiae State of California
LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601 Attorney for Amicus Curiae State of Illinois

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0

CERTIFICATE OF SERVICE

Certificate of Service When All Case Participants Are CM/ECF Participants

I h ereby certI'fy that on October 18' 2017

I e1ectroru·ca11y f1'led the forego·mg wi·th the

Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using

the CM/ECF system. I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the CM/ECF system.

s/ Teri Duenas

D CERTIFICATE OF SERVICE Certificate of Service When Not All Case Participants Are CM/ECF Participants

I hereby certify that on

I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using

the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days, to the following non-CM/ECF participants:

cow1sel / party:

address:

s/_ ____ __________

 
 No. 17-2991
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
CITY OF CHICAGO,
Plaintiff-Appellee,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellant.
On Appeal from the United States District Court for the Northern District of Illinois, No. 17-cv-5720 (Leinenweber, J.)
BRIEF FOR APPELLANT
CHAD A. READLER Principal Deputy Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
MARK B. STERN DANIEL TENNY KATHERINE TWOMEY ALLEN BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-1838

TABLE OF CONTENTS Page
STATEMENT OF JURISDICTION ................................................................................. 1 STATEMENT OF THE ISSUES ....................................................................................... 1 STATEMENT OF THE CASE .......................................................................................... 2
A. The Byrne JAG Program ..................................................................................... 2 B. Prior Proceedings.................................................................................................. 4 SUMMARY OF ARGUMENT ......................................................................................... 10 STANDARD OF REVIEW............................................................................................... 13 ARGUMENT ....................................................................................................................... 13 I. The Office of Justice Programs Can Properly Condition Law Enforcement Grants on Notice and Access Conditions that Ensure that State Incarceration of Aliens Who May Be Subject to Removal Does Not Impair Federal Enforcement of the Immigration Laws. ............................. 13 II. The District Court Improperly Extended the Injunction to Entities Other Than Chicago. ................................................................................................ 21 CONCLUSION ................................................................................................................... 30 CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
CIRCUIT RULE 30(d) STATEMENT
STATUTORY ADDENDUM
SHORT APPENDIX

TABLE OF AUTHORITIES

Cases:

Page(s)

Alvarez v. Smith, 558 U.S. 87 (2009) ............................................................................................................ 23

Baxter v. Palmigiano, 425 U.S. 308 (1976) .......................................................................................................... 23

Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................................................... 25, 27

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 21

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996) ........................................................................................... 26

Federal Trade Comm’n v. Advocate Health Care Network, 841 F.3d 460 (7th Cir. 2016) ........................................................................................... 13

International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.), cert. granted, 137 S. Ct. 2080 (2017), vacated as moot, No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017)....................... 28

Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008) ........................................................................................... 22

Lewis v. Casey, 518 U.S. 343 (1996) .......................................................................................................... 25

Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ..................................................................................... 26, 27

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .................................................................................................... 13, 25

McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997) ............................................................12, 21, 22, 23, 24, 25

ii

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .......................................................................................................... 23
Scherr v. Marriott International, Inc., 703 F.3d 1069 (7th Cir. 2013) ................................................................................... 22, 23
Summers v. Earth Island Inst., 555 U.S. 488 (2009) .......................................................................................................... 24
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) ...................................................................................................... 21
Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) ...................................................................................................... 29
U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) .......................................................................................................... 25
United States v. Mendoza, 464 U.S. 154 (1984) .......................................................................................................... 27
University of Tex. v. Camenisch, 451 U.S. 390 (1981) .......................................................................................................... 26
Virginia Soc'y for Human Life, Inc. v. Federal Election Comm'n, 263 F.3d 379 (4th Cir. 2001) ..................................................................................... 25, 27
Warth v. Seldin, 422 U.S. 490 (1975) .......................................................................................................... 21
Statutes:
5 U.S.C. § 706.......................................................................................................................... 1
8 U.S.C. § 1226(a) ................................................................................................................... 6
8 U.S.C. § 1226(c)(1) ............................................................................................................ 16
8 U.S.C. § 1231(a)(1)(B) ....................................................................................................... 16
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8 U.S.C. § 1231(a)(1)(B)(iii) ................................................................................................. 11 8 U.S.C. § 1373.................................................................................................................... 7, 9 8 U.S.C. § 1373(a) ................................................................................................................... 7 8 U.S.C. § 1373(b)................................................................................................................... 7 28 U.S.C. § 1292(a)(1) ............................................................................................................ 1 28 U.S.C. § 1331 ..................................................................................................................... 1 34 U.S.C. §§ 10101-10102 ..................................................................................................... 3 34 U.S.C. § 10102 ................................................................................................................... 4 34 U.S.C. § 10102(a)(6) ...........................................................................8, 12, 13, 16, 18, 19 34 U.S.C. § 10110(2)............................................................................................................. 20 34 U.S.C. § 10141 ................................................................................................................... 3 34 U.S.C. § 10141(b) ............................................................................................................ 18 34 U.S.C. § 10142 ................................................................................................................. 19 34 U.S.C. §§ 10151-10158 ..................................................................................................... 3 34 U.S.C. § 10152(a)(1) .................................................................................................... 3, 13 34 U.S.C. § 10153(A).............................................................................................................. 3 34 U.S.C. § 10153(A)(4) .................................................................................................... 3,14 34 U.S.C. § 10153(A)(5)(C) ............................................................................................. 3, 14 34 U.S.C. § 10153(A)(5)(D).........................................................................................3, 9, 14 34 U.S.C. § 10156 ................................................................................................................... 3
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34 U.S.C. § 10442(b) ............................................................................................................ 20 34 U.S.C. § 10446(e)(3) ........................................................................................................ 20 42 U.S.C. § 3712(a)(6) (2000) .......................................................................................... 3, 19 Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006)..........................................................................................2, 4, 18, 19 Rules: Fed. R. App. P. 4(a)(1)(B)...................................................................................................... 1 Fed. R. Civ. P. 59(e) ............................................................................................................... 1 Legislative Material: H.R. Rep. No. 109-233 (2005) ............................................................................................ 19
Other Authorities: DHS, Form I-247A, Immigration Detainer–Notice of Action,
https://www.ice.gov/sites/default/files/documents/ Document/2017/I-247A.pdf.......................................................................................... 5 OJP, About Us, https://ojp.gov/about/bureaus.htm ...................................................... 18 OJP, Grant Process Overview, https://ojp.gov/funding/Apply/GrantProcess.htm.................................................. 4 U.S. Immigration & Customs Enforcement, Policy Number 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, https://www.ice.gov/sites/ default/files/documents/Document/2017/10074-2.pdf ..................................... 6, 15
v

STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331 over federal claims that invoked 5 U.S.C. § 706 and the separation of powers. The district court issued a preliminary injunction on September 15, 2017, and the government timely appealed on September 26, 2017. See Fed. R. App. P. 4(a)(1)(B) (60-day time limit). On October 13, 2017, Chicago filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e) with respect to a claim as to which the district court had denied preliminary relief. The district court denied the motion on November 16, 2017. This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES Each year, the Department of Justice (DOJ) makes grants to states and localities to provide additional funding for law enforcement purposes through the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG Program). These grants are subject to several conditions, two of which are the subject of this appeal. The first condition (referred to as the “notice” condition) is that the grantee have a policy of notifying the Department of Homeland Security (DHS) of the scheduled release date of aliens who have been incarcerated for criminal offenses, after receiving a formal request for notification from DHS. The second condition (referred to as the “access” condition) is that the grantee have a policy of allowing federal agents to meet with an incarcerated alien in order to inquire about the alien’s right to remain in the United States. The district court held that these conditions are not authorized by the statute

establishing the Byrne JAG Program or by the Assistant Attorney General’s authority to place special conditions on grants and to determine priority purposes for grants, and preliminarily enjoined their application to the City of Chicago, the plaintiff in this action. Although no other grant recipient is a party to this case, the court further made its injunction “nationwide in scope,” so that its order is applicable not only to Chicago but to all grant recipients. Merits Op. 41 [Short Appendix (SA) 41]. The questions presented are:
1. Whether the Assistant Attorney General’s authority encompasses the notice and access conditions enjoined by the district court.
2. Whether, assuming that the district court properly enjoined application of the conditions to Chicago, it erred in extending the injunction to preclude the government from imposing the conditions on non-plaintiffs.
STATEMENT OF THE CASE A. The Byrne JAG Program 1. Congress created the Byrne JAG Program in 2006 to provide additional funding to state and local law enforcement agencies. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) (DOJ Reauthorization Act). The statute provides that “[f]rom amounts made available to carry out” the program, “the Attorney General may,” in accordance with a statutory formula, “make grants to States and units of local government” for
2

certain criminal justice purposes. 34 U.S.C. § 10152(a)(1).1 The grant funds are divided among grantees based on a statutory formula, largely premised on population and crime statistics. Id. § 10156. States and localities that seek funding under the program must submit an application to the Attorney General, “in such form as the Attorney General may require.” Id. § 10153(A). Among other things, applicants must certify that they “will comply with all provisions of this part and all other applicable Federal laws,” that they will “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” and that “there has been appropriate coordination with affected agencies.” Id. § 10153(A)(4), (5)(C), (5)(D).
Congress created the Byrne JAG Program within the Bureau of Justice Assistance, which reports to the Assistant Attorney General for the Office of Justice Programs (OJP). See 34 U.S.C. §§ 10101-10102, 10141, 10151-10158. In the same bill that created the program, Congress amended the statute that enumerates the powers of the Assistant Attorney General for OJP. The statute had previously authorized the Assistant Attorney General for OJP to “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 42 U.S.C. § 3712(a)(6) (2000). In the amendment, Congress added that those powers “includ[e] placing special conditions
1 The provisions at issue here, which previously appeared in Title 42, were recently recodified in Title 34.
3

on all grants, and determining priority purposes for formula grants.” DOJ Reauthorization Act, § 1152(b), 119 Stat. at 3113; 34 U.S.C. § 10102(a)(6).
2. When OJP approves a Byrne JAG grant application, it sends a grant award document to the applicant. The award document enumerates, among other things, the “special conditions” applicable to the award. See Hanson Decl., Exs. A-C [Appendix (App.) 46-99]; OJP, Grant Process Overview.2 The applicant then typically has 45 calendar days to review the special conditions and decide whether to accept the award document. See OJP, Grant Process Overview.
B. Prior Proceedings 1. The City of Chicago brought this suit to challenge three conditions on the receipt of the fiscal year 2017 awards. The two special conditions that are at issue in this appeal were included for the first time in connection with the fiscal year 2017 grants. The conditions both relate to criminal aliens, that is, aliens that have been arrested by state or local authorities for criminal offenses.3 The first condition, which the district court referred to as the “notice” condition, requires that, with respect to any “program or activity” funded by the grant, the
2 https://ojp.gov/funding/Apply/GrantProcess.htm 3 OJP announced the conditions when it solicited applications for the fiscal year 2017 grant program. See Byrne JAG Program FY 2017 Local Solicitation, at 30 [App. 30]. The precise text of the two new conditions was included in the two fiscal year 2017 award documents that OJP has issued. See Hanson Decl., Exs. A-B, ¶¶ 55-56 [App. 62-63, 83-84].
4

grantee must have a policy designed to ensure that, when DHS provides a formal written request for advance notice of the scheduled release date and time for a particular alien at a particular facility, the facility will “as early as practicable” provide the notice to DHS. Hanson Decl., Ex. A, ¶ 56.1.B [App. 63].4 This condition is designed to facilitate cooperation when DHS issues an “immigration detainer,” which includes a request to a local law enforcement agency that it notify DHS “as early as practicable (at least 48 hours, if possible) before the alien is released from [the agency’s] custody.” DHS, Form I-247A, Immigration Detainer–Notice of Action (Detainer Form).5 Although detainers request that, in addition to notifying Immigrations and Customs Enforcement (ICE) about the pending release of an alien, local authorities maintain custody of the alien for a brief period to allow DHS to assume custody, the notice condition at issue in this case explicitly does not require local authorities “to maintain (or detain) an individual in custody beyond the date and time the individual would have been released in the absence of this condition.” See Hanson Decl., Ex. A, ¶ 55.4.B [App. 62].
ICE authorizes issuance of a detainer only for an alien who has been arrested for a criminal offense, not for an alien “who has been temporarily detained or stopped, but
4 The term “program or activity” has the same meaning as that phrase under 42 U.S.C. § 2000d-4a. See Hanson Decl., Dkt. 32-1, Ex. A, ¶ 53.5.A(3) [App. 60].
5 https://www.ice.gov/sites/default/files/documents/Document/2017/I247A.pdf
5

not arrested” by local authorities. See U.S. Immigration & Customs Enforcement, Policy Number 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Detainer Policy), § 2.5.6 The policy also requires that the ICE officer have probable cause to believe that the alien is removable from the United States based on certain categories of reliable information, and it precludes the issuance of a detainer solely based on evidence that the alien is foreign born and the absence of records in available databases. Id. § 5.1. The policy requires that the detainer request be accompanied by an administrative warrant issued by a supervisory immigration officer. Id. §§ 2.4, 5.2. ICE officers in turn are authorized to arrest an alien on the basis of such a warrant. See 8 U.S.C. § 1226(a).
The second condition at issue, which the district court referred to as the “access” condition, requires that, with respect to any “program or activity” funded by the grant, the grantee must have a policy designed to ensure that federal agents are “given access” to correctional facilities for in order to meet with aliens and to “inquire as to such individuals’ right to be or remain in the United States.” Hanson Decl., Ex. A, ¶ 56.1.A [App. 63].
The third challenged condition, which is not at issue in this appeal, requires certification that the award recipient complies with 8 U.S.C. § 1373. Hanson Decl., Ex. A, ¶ 52 [App. 59]. Section 1373 states that “[n]otwithstanding any other
6 https://www.ice.gov/sites/default/files/documents/Document/2017/100742.pdf
6

provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a); see also id. § 1373(b) (prohibiting persons or agencies from prohibiting or restricting a government entity from sending to DHS, maintaining, or exchanging with other government entities information regarding immigration status). The district court referred to the condition requiring grant recipients to certify compliance with 8 U.S.C. § 1373 as the “compliance” condition. Compliance with 8 U.S.C. § 1373 was also required (without objection) by Chicago’s fiscal year 2016 grant. Hanson Decl., Ex. C, ¶ 52 [App. 99].
In filing suit, Chicago claimed that the notice, access, and compliance conditions were unlawful and sought a preliminary injunction against their imposition nationwide. Chicago alleged that complying with these conditions—which are aimed solely at cooperation with respect to removal of criminal aliens—would destroy the City’s goodwill with the immigrant community. See Compl. ¶ 70 (Dkt. No. 1); Mot. ¶ 3 (Dkt. No. 21); Mem. 7-9, 21-24 (Dkt. No. 23). Chicago did not claim that it is harmed by application of the conditions to other grant applicants. Nevertheless, Chicago sought a nationwide injunction against imposition of the conditions on all grant applicants. See Reply 15 (Dkt. No. 69).
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2. The district court concluded that Chicago was likely to succeed on the merits of its challenges to the notice and access conditions because, in the district court’s view, the statute establishing the Byrne JAG Program does not provide authority for those conditions. Merits Op. 13 [SA 13].
The court recognized that Congress has explicitly authorized the Assistant Attorney General to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6); Merits Op. 13-19 [SA 13-19]. The court believed, however, that the provision was adopted at a different time than the provisions creating the Byrne JAG Program and that the Office of Justice Programs was unrelated to the Bureau of Justice Assistance. The court thus concluded that the provision authorizing inclusion of special conditions did not apply to the Byrne JAG Program. Merits Op. 14 [SA 14]. The court further stated that even if § 10102(a)(6) applied to the Byrne JAG Program, it would not provide authority to impose conditions beyond the authority elsewhere vested in the Attorney General. Id. at 18 [SA 18].
The district court accepted Chicago’s claim that Chicago would suffer irreparable harm if it accepted grants containing the notice and access conditions. Merits Op. 36-37 [SA 36-37]. The court found that the balance of the equities and the public interest favored neither party because both parties “have strong public policy arguments.” Id. at 40 [SA 40]. The court granted Chicago a “preliminary injunction
8

against the Attorney General’s imposition of the notice and access conditions on the Byrne JAG grant.” Id. at 40-41 [SA 40-41].
The court then declared that “[t]his injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Merits Op. 41 [SA 41].
The district court rejected Chicago’s claim regarding the condition requiring compliance with 8 U.S.C. § 1373. The court found that the condition was constitutional and was authorized by the statutory requirement that Byrne JAG Program grant applicants certify that they “will comply with all provisions of this part and all other applicable Federal laws,” 34 U.S.C. § 10153(A)(5)(D). Merits Op. 20-35 [SA 20-35].
3. On September 26, 2017, the government filed a motion in the district court seeking a stay pending appeal of the preliminary injunction as it applies to grant applicants other than Chicago. On October 13, the district court denied the motion. The court stated that it had broad remedial authority to address a constitutional violation, and that the legal issues would not differ from jurisdiction to jurisdiction. Stay Op. 4-6 [App. 103-05]. The court expressed the view that “judicial economy counsels against” requiring other jurisdictions who wished to challenge the rulings “to file their own lawsuits,” particularly because some of them had filed amicus briefs. Id.
9

at 11 [App. 110]. The court declared that if the Attorney General wishes to impose the condition on other jurisdictions that are not parties to this case, “he must await a decision that upholds his authority to do so.” Id. at 12 [App. 111].
On the day the partial stay was denied, the government sought a partial stay in this Court of the injunction as it applied to grant applicants other than Chicago—the only plaintiff in the case. On the same day, Chicago filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e) concerning the denial of an injunction with respect to the compliance condition.
This Court accepted Chicago’s contention that the filing of the motion for reconsideration divested this Court of jurisdiction to consider the appeal from the order granting a preliminary injunction with respect to the “notice” and “access” conditions. But the district court denied Chicago’s motion for reconsideration on November 16, 2017, and appellate proceedings resumed. This Court denied the government’s request for a partial stay on November 21, 2017.
SUMMARY OF ARGUMENT 1. The statute creating the Byrne JAG Program authorizes the Office of Justice Programs to make grants to states and localities to assist in law enforcement activities. The district court held that two of the conditions on the current grant awards exceed the authority of the Assistant Attorney General in administering the grant program. The “notice” condition requires a grant recipient to have a policy of informing ICE of the scheduled release date of an incarcerated alien after receiving a formal request for
10

notification from DHS. The “access” condition requires that grant recipients have a policy of allowing federal agents to meet with an incarcerated alien in order to inquire about the alien’s right to remain in the United States.
It is perhaps surprising that it should be necessary to specify this basic level of cooperation at all. The Immigration and Nationality Act (INA) contemplates that removable aliens may be arrested for criminal offenses by states or localities and then taken into custody and removed by the federal government. For example, for aliens with final orders of removal, Congress designated a “removal period” of 90 days that does not begin, in the case of an alien detained or confined on criminal charges, until after the date of the alien’s release. 8 U.S.C. § 1231(a)(1)(B)(iii). Congress has thus allowed state criminal proceedings to take precedence over federal immigration proceedings based on the implicit premise that states and localities will not use this precedence to frustrate federal immigration enforcement by refusing to inform the federal government of release dates or denying federal officials access to persons who may be subject to removal.
It is still more surprising that a city should refuse such minimal cooperation even as it accepts a law enforcement grant, and that a city should claim that there is no basis in law for specifying these conditions. Nothing about the grant program suggests that the federal government is required to make law enforcement grants to cities that have explicitly declared their intention to frustrate federal law enforcement.
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The district court mistakenly concluded that the statute precludes the Assistant Attorney General from conditioning receipt of law enforcement funds on an assurance that the recipient will not thwart federal law enforcement. The court compounded its error by effectively reading out of the statute the provision making clear that the powers vested in the Assistant Attorney General for OJP “includ[es] placing special conditions on all grants and determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6). Congress enacted this provision in the same bill that created the Byrne JAG Program and placed the Program within the Office of Justice Programs. The court nevertheless held that the provision is inapplicable to OJP’s administration of the Program, and likewise erred in concluding that, in any event, the provision should be deemed a nullity because it would render superfluous other provisions granting other officers the authority to impose conditions in other circumstances. In the name of avoiding superfluous provisions, the district court mistakenly rendered meaningless the authority vested in the Assistant Attorney General.
2. Even assuming that this Court were to adopt the district court’s reasoning, it would be necessary to limit the scope of the court’s injunction to Chicago—the only plaintiff in the case. Applying settled principles of Article III standing, this Court in McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997), addressed the same issue presented here and held that a plaintiff lacks standing to seek relief that benefits only third parties. Here, as in McKenzie, the plaintiff’s interests could be protected by an
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injunction limited to the plaintiff, and the district court therefore did not have authority to grant relief to non-parties. In addition, settled equitable principles require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). The portion of the injunction that applies to jurisdictions other than Chicago exceeds the district court’s Article III and equitable authority, and should be reversed.
STANDARD OF REVIEW This Court reviews “the district court’s legal determinations de novo, its factual findings for clear error, and its ultimate decision [on a preliminary injunction] for abuse of discretion.” Federal Trade Comm’n v. Advocate Health Care Network, 841 F.3d 460, 467 (7th Cir. 2016).
ARGUMENT I. The Office of Justice Programs Can Properly Condition Law
Enforcement Grants on Notice and Access Conditions that Ensure that State Incarceration of Aliens Who May Be Subject to Removal Does Not Impair Federal Enforcement of the Immigration Laws. A. The Byrne JAG Program provides that the “Attorney General may . . . make grants to States and units of local government” for law enforcement and related purposes. 34 U.S.C. § 10152(a)(1). The relevant statutory provisions set out several specific requirements for grant applicants and further authorize the Assistant Attorney General for Justice Programs to “plac[e] special conditions on all grants, and determin[e] priority purposes for formula grants.” Id. § 10102(a)(6).
13

Among other requirements set out in the statute, applicants for grants must certify that they “will comply with all provisions of this part and all other applicable Federal laws,” 34 U.S.C. § 10153(A)(5)(D), and agree to undertake various specific and general activities to advance law enforcement goals. For example, applicants must provide an assurance that they will “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” and that “there has been appropriate coordination with affected agencies.” Id. § 10153(a)(4), (5)(C). Additional conditions established by the Assistant Attorney General in past years include requirements that grantees conform to a package of information technology requirements to promote information sharing and protect privacy, procedures regarding the protection of human research subjects, compliance with conditions relating to Prohibited and Controlled Expenditure Lists, training requirements, and assurance of compliance with § 1373. Hanson Decl., Ex. C, ¶¶ 26, 28, 29, 32-33, 45-50, 52 [App. 95-99].
In connection with grants under the fiscal year 2017 program, the Assistant Attorney General announced that the two conditions at issue in this appeal would be imposed and that compliance with these conditions “will be an authorized and priority purpose of the award.” Byrne JAG Program FY 2017 Local Solicitation 30 [App. 30]. The Assistant Attorney General acted well within his discretion in imposing these modest requirements, both of which are designed to ensure that state
14

incarceration of criminal aliens does not pose an obstacle to enforcement of the immigration laws.
In accepting the “notice” condition, the grant applicant agrees to have a policy providing that, if DHS provides a formal written request for advance notice of the scheduled release date and time for a particular alien at a particular facility, the facility will “as early as practicable” provide the notice to DHS. Hanson Decl., Ex. A, ¶ 56.1.B [App. 63]. An applicant thus agrees to provide the information requested by “immigration detainers,” which ICE issues for aliens who have been arrested for a criminal offense (and not for an alien “who has been temporarily detained or stopped, but not arrested” by local authorities). See Detainer Policy § 2.5, supra n.6. The applicant need not, however, “maintain (or detain) an individual in custody beyond the date and time the individual would have been released in the absence of this condition.” Hanson Decl., Ex. A, ¶ 55.4.B [App. 62].
Agency policy requires that a detainer be issued only when an ICE officer has probable cause to believe the alien is removable from the United States based on certain categories of reliable information; a detainer may not issue based solely on evidence that the alien is foreign born and the absence of records in available databases. Detainer Policy § 5.1. The detainer request must be accompanied by an administrative warrant issued by a supervisory immigration officer. Id. §§ 2.4, 5.2.
In accepting the “access” condition, an applicant agrees to have a policy providing that federal agents will be “given access” to correctional facilities for the purpose of
15

meeting with aliens and to “inquire as to such individuals’ right to be or remain in the United States.” Hanson Decl., Ex. A, ¶ 56.1.A [App. 63]. Aliens are not compelled to talk with ICE agents. But, particularly when aliens do not appear in the relevant databases, voluntary interviews in jails and prisons help ICE to assess an aliens’ likely immigration status.
In agreeing to these conditions on law enforcement grants, applicants thus simply agree that their law enforcement activities will not impair the law enforcement activities of the federal government. The structure of the Immigration and Nationality Act contemplates that states and localities may prosecute and incarcerate for criminal offenses aliens who may be in the country illegally and, indeed, aliens as to whom a removal order has already issued, but that such aliens will then be transferred to federal custody. Congress has mandated that certain aliens who have committed criminal offenses be taken into federal custody pending removal proceedings, but only “when the alien is released” from state custody. 8 U.S.C. § 1226(c)(1). With respect to incarcerated aliens subject to a final removal order, the INA establishes a “removal period” of 90 days that begins with the date of the alien’s release. Id. § 1231(a)(1)(B). It is crucial to this cooperative law enforcement framework that states and their subdivisions respond to requests for release date information and permit federal agents to engage in voluntary interviews with aliens in their custody before releasing them into the general population.
16

While the district court recognized that Congress intended grant applicants to be compelled to comply with all applicable laws, the court nevertheless concluded that the notice and access conditions are impermissible on the theory that a grant can include no condition that is not expressly established by statute. Nothing in the statute supports the counterintuitive conclusion that applicants can insist on their entitlement to federal law enforcement grants even as they refuse to provide the most basic cooperation in immigration enforcement, which the Attorney General has identified as a federal priority. The district court seriously erred in construing the statute to preclude such conditions.
B. The district court reached its counterintuitive result by declining to give any import to 34 U.S.C. § 10102(a)(6), which authorizes the Assistant Attorney General to “plac[e] special conditions on all grants, and determin[e] priority purposes for formula grants.”
The district court mistakenly held that this provision is inapplicable to the Byrne JAG program, declaring that “this grant of authority” is “located in an entirely different subchapter” than the subchapter establishing the Byrne JAG Program. Merits Op. 13-14 [SA 13-14]. The court stated that § 10102(a)(6) was codified in subchapter I, which governs OJP, whereas the Byrne JAG Program was “later-intime” and was codified under the Bureau of Justice Assistance Grant Programs in subchapter V. Id. at 12-14 [SA 12-14].
17

Contrary to the district court’s understanding, Congress enacted the provision that is now § 10102(a)(6) in the same bill that created the Byrne JAG grant program. See Pub. L. No. 109-162, § 1152(b), 119 Stat. at 3113. The court likewise misunderstood the codification of the Byrne JAG Program under the Bureau of Justice Assistance Grant Programs. The Director of the Bureau of Justice Assistance “report[s] to the Attorney General through the Assistant Attorney General” for the Office of Justice Programs. 34 U.S.C. § 10141(b); see OJP, About Us, https://ojp.gov/about/ bureaus.htm (OJP organizational chart). The Bureau is part of the Office of Justice Programs, not an independent entity. Section 10102(a)(6)’s provision authorizing the Assistant Attorney General for OJP to “plac[e] special conditions on all grants” and “determin[e] priority purposes for formula grants” clearly applies to the Byrne JAG Program.
When the court analyzed the provision on the assumption that it might apply, it effectively rendered the grant of authority a nullity. The court declared that the statute provides no authority to impose conditions or establish priorities unless the authority is already elsewhere vested in the Attorney General. Merits Op. 17 [SA 17].
There is no basis in the text for making the provision superfluous, and the provision’s history underscores the error in the district court’s analysis. Prior to 2006, the statute provided, without elaboration, that the Assistant Attorney General for OJP had the power to “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney
18

General.” 42 U.S.C. § 3712(a)(6) (2000). In the DOJ Reauthorization Act, in addition to creating the Byrne JAG Program, Congress amended the statute to provide expressly that these powers “includ[e] placing special conditions on all grants, and determining priority purposes for formula grants.” Pub. L. No. 109-162, § 1152(b), 119 Stat. at 3113; see 34 U.S.C. § 10102(a)(6). Congress did not amend the statute to add superfluous language, and the Committee Report accompanying the amendment confirmed that the new provision “allows the Assistant Attorney General to place special conditions on all grants and to determine priority purposes for formula grants.” H.R. Rep. No. 109-233, at 101 (2005).
Although the amendment to § 10102(a)(6) expressly provides the Department of Justice with some discretion over grants in general and formula grants in particular, the district court interpreted the new language to authorize no conditions not already authorized by the statute. Paradoxically, the district court justified this interpretation on the ground that giving it effect would render superfluous the statutory provision that authorizes the Director of the Bureau of Justice Assistance to determine terms and conditions for discretionary grants issued under Part B of the statute. Merits Op. 14-16 [SA 14-16] (citing 34 U.S.C. § 10142). The new provision made clear that the Assistant Attorney General has power to add conditions in addition to those established by the Director, who, as noted, reports to the Assistant Attorney General.
The court likewise erred in concluding that giving effect to § 10102(a)(6) would in some way be at odds with Congress’s express statement that the Attorney General can
19

impose “reasonable conditions” when administering the grant program designed to combat violence against women. Merits Op. 16 [SA 16] (emphasis omitted) (quoting 34 U.S.C. § 10446(e)(3)). That program is administered not by the Office of Justice Programs but by the Violence Against Women Office, which is a “separate and distinct office” within DOJ that is headed by a Director “who shall report to the Attorney General.” 34 U.S.C. § 10442(b). That Congress used different language to confer authority in connection with that distinct program has no evident bearing on the issue presented here.
The district court was also mistaken to conclude that “it is suspect to ground the Attorney General’s authority to impose the challenged conditions via the power Congress conferred on the Assistant Attorney General.” Merits Op. 17 [SA 17]. OJP, which is headed by the Assistant Attorney General to whom the power is conferred, is the entity that imposes the grant award conditions. Moreover, Congress provided that the Attorney General “shall have final authority over all functions, including any grants . . . made, or entered into, for the Office of Justice Programs.” 34 U.S.C. § 10110(2).
The district court exacerbated its error by investing its holding with constitutional significance, declaring without elaboration that because the inclusion of the notice and access conditions in grant applications “exceed statutory authority, . . . consequently, efforts to impose them violate the separation of powers doctrine.” Merits Op. 19 [SA 19]. As discussed, the Assistant Attorney General did not abuse his discretion or
20

contravene any statutory limitation in including the two conditions. But even assuming that the conditions could be deemed an abuse of discretion, an error in grant administration does not implicate the structural limitations on the three branches of government. II. The District Court Improperly Extended the Injunction to Entities
Other Than Chicago. As we have shown, the district court’s assessment of the merits of Chicago’s challenge rests on an error of law. Even assuming, however, that this Court were to agree with the district court’s reasoning, it would be necessary to vacate the injunction insofar as it extends to entities other than the City of Chicago. Vacatur is required by principles of Article III standing and limitations on a court’s equitable authority. A. To establish standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quotation marks omitted). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted). It is fundamental that “plaintiffs lack standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997). See also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining
21

party, even though the court’s judgment may benefit others collaterally.”). As this Court has emphasized, “[t]he general rule is that a plaintiff has standing to sue only for injuries to his own interests that can be remedied by a court order.” Laskowski v. Spellings, 546 F.3d 822, 825 (7th Cir. 2008) (emphasis in original).
Applying this principle in McKenzie, this Court reversed an injunction that precluded the City of Chicago from operating a demolition program with respect to entities other than the plaintiffs. This Court noted the district court’s conclusion “that it was appropriate to enjoin the entire program, despite the lack of class certification, in order to prevent the City from violating the Constitution.” McKenzie, 118 F.3d at 555. As this Court explained, the district court’s statement “assume[d] an affirmative answer to the question at issue: whether a court may grant relief to nonparties. The right answer is no.” Id. This Court held that “the injunction exceeded the district judge’s powers under Article III of the Constitution.” Id. at 555 n.*. This Court reasoned that the plaintiff’s “interests c[ould] be protected by an injunction that prevents the City from demolishing their properties,” so the district court was wrong to “enjoin the entire program, despite the lack of class certification.” Id. at 555.
Similarly, in Scherr v. Marriott International, Inc., this Court held that the plaintiff did not have standing to seek an injunction that went beyond remedying her personal injury, even though the defendant allegedly committed the same legal violation more broadly. 703 F.3d 1069, 1075 (7th Cir. 2013). This Court reasoned that although the plaintiff had established that she was suffering an imminent injury from the
22

defendant’s use of spring-hinged door closers at one particular hotel, she had not established that she would be imminently injured by the defendant’s use of the same door closers at the defendant’s other hotels, and thus she did not have standing to pursue injunctive relief relating to other hotels. Id.
These cases make clear that where no class has been certified, no justiciable controversy exists when the injury to the actual plaintiffs has been remedied. As this Court explained in McKenzie, where “a class has not been certified, the only interests at stake are those of the named plaintiffs.” 118 F.3d at 555 (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976)). Thus, in Alvarez v. Smith, 558 U.S. 87, 92 (2009), the plaintiffs lacked standing to seek declaratory and injunctive relief against the State’s practice of keeping property in custody without a prompt post-seizure hearing because the plaintiffs had already received the seized property or forfeited their claims to it. The Supreme Court explained that since class certification had been denied, the “only disputes relevant here are those between these six plaintiffs and the State’s Attorney . . . and those disputes are now over.” Id. at 93; see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (the plaintiffs “d[id] not represent a class, so they could not seek to enjoin [an agency order] on the ground that it might cause harm to other parties”).
The same principles inform the Supreme Court’s repeated admonition that the standing requirements of Article III preclude a court from granting relief that is not directed to remedying the injury asserted by the plaintiff. Thus, for example, in
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Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court held that the plaintiffs lacked standing to challenge Forest Service regulations after the parties had resolved the controversy regarding the application of the regulations to the project that had caused the plaintiffs’ injury. Noting that the plaintiffs’ “injury in fact with regard to that project ha[d] been remedied,” id. at 494, the Court held that to allow the plaintiffs to challenge the regulations “apart from any concrete application that threatens imminent harm to [their] interests” would “fly in the face of Article III’s injury-in-fact requirement.” Id.
Under these principles, Chicago does not have standing to seek an injunction broader than necessary to remedy its own asserted injury. Chicago properly does not claim that an injunction that extends to all grant applicants is necessary to remedy the City’s claimed harm, which is based entirely on the imposition of the notice and access conditions on Chicago itself. Having granted relief to Chicago, the district court had no authority to extend its ruling to jurisdictions across the country.
In its order denying a partial stay pending appeal, the district court declared that, having found a “constitutional violation,” Stay Op. 4 [App. 103], it had discretion to correct that violation with respect to cities across the country. As discussed, see pp. 20-21, supra, there is no “constitutional violation.” Even if the court’s interpretation of the statute were correct, an error in administering a grant program would not implicate the separation of powers; it would give rise to a run-of-the-mill statutory claim. In any event, McKenzie makes clear that rules of standing are not suspended
24

even when a court finds a constitutional violation. 118 F.3d at 555. The cases the district court relied on did not address the issue of Article III standing, and the Supreme Court has “repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996). The binding cases of this Court that did address Article III standing in this context make clear that Chicago does not have standing to seek relief that benefits only non-parties.
B. Even apart from the requirements of Article III, the district court’s injunction runs afoul of fundamental limitations on a court’s exercise of its equitable powers. Equitable principles require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); see U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (granting stay of Armed-Forces-wide injunction except as to individual plaintiff).
Applying this principle, the Fourth Circuit in Virginia Society for Human Life, Inc. v. Federal Election Commission, 263 F.3d 379 (4th Cir. 2001), vacated an injunction that precluded the Federal Election Commission from enforcing, against any entity, a regulation found to have violated the First Amendment. The court explained that an injunction covering the plaintiff “alone adequately protects it from the feared prosecution,” and that “[p]reventing the FEC from enforcing [the regulation] against other parties in other circuits does not provide any additional relief to [the plaintiff].” Id. at 393. Recognizing the same restraint on the exercise of equitable powers, in Los
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Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011), although the Ninth Circuit agreed with the district court that a Department of Health and Human Services regulation was facially invalid, the court vacated an injunction insofar as it barred the Department of Health and Human Services from enforcing the regulation against entities other than the plaintiff. See id. at 664 (“[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification.”) (alteration in original) (quoting Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996)). These principles apply with even greater force to a preliminary injunction, an equitable tool designed merely to “preserve the relative positions of the parties until a trial on the merits can be held.” University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added).
The portion of the district court’s injunction that applies to jurisdictions other than Chicago plainly exceeds the court’s equitable authority. Chicago is the only grant applicant in this lawsuit, and Chicago does not dispute that an injunction limited to Chicago provides it with full relief.
C. The district court misperceived its role in expanding the scope of its injunction on the theory that there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Merits Op. 41 [SA 41]; see also Stay Op. 4-5 [App. 103-04]. This conclusion does not by itself warrant relief for parties not before the court, as Chicago did not move for class certification on this (or any other) basis.
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The district court’s finding that Chicago was likely to succeed on its argument that the imposition of the conditions was facially invalid does not entitle Chicago to a nationwide injunction. The court’s conclusion conflated the scope of Chicago’s legal argument with the scope of relief necessary to remedy Chicago’s alleged injury. See Los Angeles Haven Hospice, 638 F.3d at 665 (reversing nationwide injunction despite upholding district court’s conclusion that regulation was facially invalid). A district court has no general authority to go beyond the relief necessary to remedy a plaintiff’s injury and also purport to settle the law for the entire nation. Permitting a court to do so “would ‘substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. ’ ” Virginia Soc’y for Human Life, 263 F.3d at 393 (quoting United States v. Mendoza, 464 U.S. 154, 160 (1984)). See also Los Angeles Haven Hospice, 638 F.3d at 664 (“[N]ationwide injunctions ‘have a detrimental effect by foreclosing adjudication by a number of different courts and judges.’ ”) (quoting Califano, 442 U.S. at 702); id. (“[A]llowing only one final adjudication deprives the Supreme Court of the benefit it receives from permitting multiple courts of appeals to explore a difficult question before it grants certiorari.”) (citing Mendoza, 464 U.S. at 160).
The district court’s error is underscored by the asymmetry inherent in its view of its equitable powers. A denial of a nationwide injunction in this case would not foreclose any other grant applicant from bringing suit on the same legal grounds
27

urged here by Chicago. Nevertheless, the court deemed it equitable to foreclose the United States from enforcing the grant conditions regardless of whether it would be able to prevail in other courts. In other words, insofar as Chicago prevails, the district court issues the relief that might have been appropriate if it had certified a class of all grant applicants. But insofar as the federal government prevails, it gains none of the benefits of prevailing in a class action.
In extending its injunction beyond Chicago, the district court relied on the scope of the injunction approved in International Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), cert. granted, 137 S. Ct. 2080, 2086 (2017), vacated as moot, No. 161436, 2017 WL 4518553 (U.S. Oct. 10, 2017). The Fourth Circuit’s decision cannot be squared with this Court’s precedent or, indeed, the precedent of the Fourth Circuit. And the Fourth Circuit’s decision is inapposite even on its own terms. The Fourth Circuit gave three reasons for the nationwide injunction and none of them apply here. First, the Fourth Circuit found it significant that the “[p]laintiffs are dispersed throughout the United States,” 857 F.3d at 605, which is of course not true for the City of Chicago. Second, the Fourth Circuit believed that “nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that the immigration laws of the United States should be enforced vigorously and uniformly.” Id. (quotation marks omitted). The challenged conduct in this case involves the administration of a federal grant program, rather than the application of immigration law to foreign nationals. Third, the Fourth Circuit believed that limiting the
28

injunction to the plaintiffs would not cure their asserted injury under the Establishment Clause because enforcement against others would “reinforce the message that Plaintiffs are outsiders, not full members of the political community.” Id. (quotation marks omitted). The Establishment Clause is not implicated here; nor does Chicago assert that its own injury cannot be redressed without an injunction extending to non-parties.
The district court’s reliance on the Supreme Court’s grant of a partial stay of the injunction in International Refugee Assistance Project was equally misplaced. See Stay Op. 7-9 [App. 106-08] (citing Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017)). There, the dissenting Justices would have reached the issues presented here and sided with the government’s position, id. at 2090 (Thomas, J., dissenting), but the majority declined to discuss the issues at all. There is no basis for presuming that the Supreme Court resolved the issue without discussing it, much less for reading the case to overrule sub silentio this Court’s decision in McKenzie. The majority was under no obligation, in a discretionary assessment of whether a stay was appropriate, to reach every issue, and indeed emphasized its discretion in balancing the equities. International Refugee Assistance Project, 137 S. Ct. at 2087.
The settled Article III and equitable limits on the scope of injunctions apply with full force here and require reversal of the district court’s injunction as it applies to non-plaintiffs.
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CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed.
Respectfully submitted, CHAD A. READLER
Principal Deputy Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
MARK B. STERN s/ Daniel Tenny DANIEL TENNY KATHERINE TWOMEY ALLEN BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-1838 daniel.tenny@usdoj.gov
NOVEMBER 2017
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Circuit Rule 32(c) because it contains 7,400 words. This brief also complies with the typeface and type-style requirements of Circuit Rule 32(b) because it was prepared using Microsoft Word 2013 in Garamond 14-point font, a proportionally spaced typeface.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on November 28, 2017, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the appellate CM/ECF system. I further certify that I will cause 15 paper copies of this brief to be received by the Clerk within seven days of the Notice of Docket Activity generated upon acceptance of the brief, in compliance with 7th Circuit Rule 31(b) and ECF Procedure (h)(2). Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Daniel Tenny Daniel Tenny

CIRCUIT RULE 30(d) STATEMENT Pursuant to Circuit Rule 30(d), counsel certifies that all materials required by Circuit Rule 30(a) and (b) are included in the appendix.
s/ Daniel Tenny Daniel Tenny

STATUTORY ADDENDUM

TABLE OF CONTENTS 34 U.S.C. § 10102 ................................................................................................................ A1 34 U.S.C. § 10152 ................................................................................................................ A2 34 U.S.C. § 10153 ................................................................................................................ A4

34 U.S.C. § 10102 § 10102. Duties and functions of Assistant Attorney General. (a) Specific, general and delegated powers
The Assistant Attorney General shall-(1) publish and disseminate information on the conditions and progress of the criminal justice systems; (2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants. (b) Annual report to President and Congress The Assistant Attorney General shall submit an annual report to the President and to the Congress not later than March 31 of each year.
A1

34 U.S.C. § 10152 § 10152. Description. (a) Grants authorized
(1) In general
From amounts made available to carry out this part, the Attorney General may, in accordance with the formula established under section 10156 of this title, make grants to States and units of local government, for use by the State or unit of local government to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following programs:
(A) Law enforcement programs.
(B) Prosecution and court programs.
(C) Prevention and education programs.
(D) Corrections and community corrections programs.
(E) Drug treatment and enforcement programs.
(F) Planning, evaluation, and technology improvement programs.
(G) Crime victim and witness programs (other than compensation).
(H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams.
(2) Rule of construction
Paragraph (1) shall be construed to ensure that a grant under that paragraph may be used for any purpose for which a grant was authorized to be used under either or both of the programs specified in section 10151(b) of this title, as those programs were in effect immediately before January 5, 2006.
(b) Contracts and subawards
A State or unit of local government may, in using a grant under this part for purposes authorized by subsection (a), use all or a portion of that grant to contract with or make one or more subawards to one or more--
(1) neighborhood or community-based organizations that are private and nonprofit; or
(2) units of local government.
(3) Repealed. Pub.L. 109-271, § 8(h)(3), Aug. 12, 2006, 120 Stat. 767
A2

(c) Program assessment component; waiver
(1) Each program funded under this part shall contain a program assessment component, developed pursuant to guidelines established by the Attorney General, in coordination with the National Institute of Justice.
(2) The Attorney General may waive the requirement of paragraph (1) with respect to a program if, in the opinion of the Attorney General, the program is not of sufficient size to justify a full program assessment.
(d) Prohibited uses
Notwithstanding any other provision of this Act, no funds provided under this part may be used, directly or indirectly, to provide any of the following matters:
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order--
(A) vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters);
(B) luxury items;
(C) real estate;
(D) construction projects (other than penal or correctional institutions); or
(E) any similar matters.
(e) Administrative costs
Not more than 10 percent of a grant made under this part may be used for costs incurred to administer such grant.
(f) Period
The period of a grant made under this part shall be four years, except that renewals and extensions beyond that period may be granted at the discretion of the Attorney General.
(g) Rule of construction
Subparagraph (d)(1) shall not be construed to prohibit the use, directly or indirectly, of funds provided under this part to provide security at a public event, such as a political convention or major sports event, so long as such security is provided under applicable laws and procedures.
A3

34 U.S.C. § 10153
§ 10153. Applications
(A) In general
To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
(1) A certification that Federal funds made available under this part will not be used to supplant State or local funds, but will be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities.
(2) An assurance that, not fewer than 30 days before the application (or any amendment to the application) was submitted to the Attorney General, the application (or amendment) was submitted for review to the governing body of the State or unit of local government (or to an organization designated by that governing body).
(3) An assurance that, before the application (or any amendment to the application) was submitted to the Attorney General--
(A) the application (or amendment) was made public; and
(B) an opportunity to comment on the application (or amendment) was provided to citizens and to neighborhood or community-based organizations, to the extent applicable law or established procedure makes such an opportunity available.
(4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.
(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, if qualified under regulations promulgated by the Attorney General), that--
(A) the programs to be funded by the grant meet all the requirements of this part;
(B) all the information contained in the application is correct;
(C) there has been appropriate coordination with affected agencies; and
A4

(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
(6) A comprehensive Statewide plan detailing how grants received under this section will be used to improve the administration of the criminal justice system, which shall--
(A) be designed in consultation with local governments, and representatives of all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, corrections personnel, and providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services;
(B) include a description of how the State will allocate funding within and among each of the uses described in subparagraphs (A) through (G) of section 10152(a)(1) of this title;
(C) describe the process used by the State for gathering evidence-based data and developing and using evidence-based and evidence-gathering approaches in support of funding decisions;
(D) describe the barriers at the State and local level for accessing data and implementing evidence-based approaches to preventing and reducing crime and recidivism; and
(E) be updated every 5 years, with annual progress reports that--
(i) address changing circumstances in the State, if any;
(ii) describe how the State plans to adjust funding within and among each of the uses described in subparagraphs (A) through (G) of section 10152(a)(1) of this title;
(iii) provide an ongoing assessment of need;
(iv) discuss the accomplishment of goals identified in any plan previously prepared under this paragraph; and
(v) reflect how the plan influenced funding decisions in the previous year.
(b) Technical assistance
(1) Strategic planning
Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments requesting support to develop and implement the strategic plan required under subsection (a)(6). The
A5

Attorney General may enter into agreements with 1 or more non-governmental organizations to provide technical assistance and training under this paragraph.
(2) Protection of constitutional rights Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments, including any agent thereof with responsibility for administration of justice, requesting support to meet the obligations established by the Sixth Amendment to the Constitution of the United States, which shall include--
(A) public dissemination of practices, structures, or models for the administration of justice consistent with the requirements of the Sixth Amendment; and
(B) assistance with adopting and implementing a system for the administration of justice consistent with the requirements of the Sixth Amendment. (3) Authorization of appropriations For each of fiscal years 2017 through 2021, of the amounts appropriated to carry out this subpart, not less than $5,000,000 and not more than $10,000,000 shall be used to carry out this subsection.
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SHORT APPENDIX

Case: 1:17-cv-05720 Document #: 78 Filed: 09/15/17 Page 1 of 41 PageID #:1116

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,
Defendant.

Case No. 17 C 5720 Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER This case involves the intersection between federal immigration policies and local control over policing. Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, seeks to impose new conditions on an annual federal grant relied on by the City of Chicago for law enforcement initiatives. These conditions require additional cooperation with federal immigration officials and directly conflict with Chicago’s local policy, codified in its Welcoming City Ordinance, which restricts local officials’ participation in certain federal immigration efforts. Chicago claims its policies engender safer streets by fostering trust and cooperation between the immigrant community and local police. Chicago’s policies are at odds with the immigration enforcement

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priorities and view of public safety espoused by the Attorney General.
Against this backdrop, the City of Chicago claims that these new conditions are unlawful and unconstitutional, and implores this Court to grant a preliminary injunction enjoining their imposition. For the reasons described herein, the Court grants in part, and denies in part, the City of Chicago’s Motion for a Preliminary Injunction.
I. FACTUAL BACKGROUND A. The Edward Byrne Memorial
Justice Assistance Grant Program The federal grant at issue is awarded by the Edward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG grant”). See, 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). Named after a fallen New York City police officer, the Byrne JAG grant supports state and local law enforcement efforts by providing additional funds for personnel, equipment, training, and other criminal justice needs. See, 34 U.S.C. § 10152 (formerly 42 U.S.C. § 3751). The Byrne JAG grant is known as a formula grant, which means funds are awarded based on a statutorily defined formula. See, 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755). Each state’s allocation is keyed to its population and the amount of reported violent crimes. Ibid. The
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City of Chicago (the “City”) has received Byrne JAG funds since 2005, including $2.33 million last year on behalf of itself and neighboring political entities. (See, Decl. of Larry Sachs, ¶¶ 3, 11-12.) The City has used these funds to buy police vehicles and to support the efforts of non-profit organizations working in high crime communities. (See, id. ¶ 4.)
B. New Conditions on the Byrne JAG Grant In late July 2017, the Attorney General announced two new conditions on every grant provided by the Byrne JAG program. (See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The two new conditions require, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations, and, second, that local authorities provide immigration agents with access to City detention facilities and individuals detained therein. Additionally, a condition on Byrne JAG funds was added last year that requires the City to certify compliance with a federal statute, 8 U.S.C. § 1373, which prohibits local government and law enforcement officials from restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual. (See, FY 2016 Chicago/Cook County JAG Program Grant
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Award, dated Sept. 7, 2017, at 2-13, Ex. C to Decl. of Alan
Hanson (“Hanson Decl.”).) The condition to certify compliance
is also imposed on 2017 Byrne JAG funds. (See, Byrne JAG
Program, FY 2017 Local Solicitation, Ex. 11 to Def.’s Br.) The
exact text of the three conditions is as follows:
(1) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable -- provide the requested notice to DHS.
(2) A State statute, or a State rule, regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.
(3) The applicant local government must submit the required ‘Certification of Compliance with 8 U.S.C. 1373’ (executed by the chief legal officer of the local government).
(Byrne JAG Program Grant Award for County of Greenville, Special
Conditions (“Byrne Conditions”), ¶¶ 53, 55-56, Ex. A to Hanson
Decl.; see also Hanson Decl., ¶ 6.) These conditions will be
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referred to respectively as the notice condition, the access
condition, and the compliance condition. The City claims all
three conditions are unlawful and unconstitutional, even though
it acquiesced to the compliance condition when accepting the
2016 Byrne JAG funds.
The compliance condition requires the City to certify
compliance with Section 1373. (Byrne Conditions ¶ 53.) Section
1373 is titled “Communication between government agencies and
the Immigration and Naturalization Service” and provides as
follows, 8 U.S.C. § 1373:
(a) In General
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.
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(c) Obligation to Respond to Inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
C. The City’s Welcoming Ordinance Chicago’s Welcoming City Ordinance (the “Ordinance”) is a codified local policy that restricts the sharing of immigration status between residents and police officers. See, Chicago, Illinois, Municipal Code § 2-173-005 et seq. The explicit purpose of the Ordinance is to “clarify what specific conduct by City employees is prohibited because such conduct significantly harms the City’s relationship with immigrant communities.” Id. § 2-173-005. The Ordinance reflects the City’s belief that the “cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City” and that the “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all its residents.” Ibid. Since the mid-1980s, the City has had in place some permutation of this policy, typically in the form of executive orders that prohibited City agents and agencies from
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requesting or disseminating information about individuals’ citizenship. (See, Executive Order 85-1, 89-6, Exs. A-B to Pl.’s Br.) First codified in Chicago’s Municipal Code in 2006, the Ordinance was augmented in 2012 to refuse immigration agents access to City facilities and to deny immigration detainer requests unless certain criteria were met. See, Chicago, Illinois Municipal Code § 2-173-005. An immigration detainer request is a request from Immigration and Customs Enforcement (“ICE”), asking local law enforcement to detain a specific individual for up to 48 hours to permit federal assumption of custody.
The Ordinance prohibits any “agent or agency” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” Id. § 2-173-020. It goes on to forbid any agent or agency from “disclos[ing] information regarding the citizenship or immigration status of any person.” Id. § 2-173-030. The Ordinance specifically characterizes “[c]ivil immigration enforcement actions” as a “[f]ederal responsibility,” and provides as follows:
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a. Except for such reasonable time as is necessary to conduct the investigation specified in subsection (c) of this section, no agency or agent shall:
1. arrest, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation;
2. arrest, detain, or continue to detain a person based on an administrative warrant entered into the Federal Bureau of Investigation’s National Crime Information Center database, or successor or similar database maintained by the United States, when the administrative warrant is based solely on a violation of a civil immigration law; or
3. detain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.
b.
1. Unless an agency or agent is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
A. permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
B. permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or
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C. while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date.
2. An agency or agent is authorized to communicate with ICE in order to determine whether any matter involves enforcement based solely on a violation of a civil immigration law.
c. This section shall not apply when an investigation conducted by the agency or agent indicates that the subject of the investigation:
1. has an outstanding criminal warrant;
2. has been convicted of a felony in any court of competent jurisdiction;
3. is a defendant in a criminal case in any court of competent jurisdiction where a judgment has not been entered and a felony charge is pending; or
4. has been identified as a known gang member either in a law enforcement agency’s database or by his own admission.
Id. § 2-173-042. The Ordinance is thus irreconcilable with the
notice and access conditions the Attorney General has imposed on
the 2017 Byrne JAG grant.
After receiving notice of the Attorney General’s new
conditions on the Byrne JAG grant program, the City filed suit
alleging that the conditions were unconstitutional and unlawful.
Throughout this litigation, the City has strenuously argued for
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its prerogative to allocate scarce local police resources as it sees fit – that is, to areas other than civil immigration enforcement – and for the soundness of doing so based on the integral role undocumented immigrant communities play in reporting and solving crime. (See, Pl.’s Br. at 2-4.) Before the Court is the City’s Motion for a Preliminary Injunction, requesting the Court enjoin the Attorney General from imposing the three above-described conditions on FY 2017 Byrne JAG funds.
The Court grants the City a preliminary injunction against the imposition of the notice and access conditions on the Byrne JAG grant. The Court declines to grant the preliminary injunction with respect to the compliance condition.
II. ANALYSIS A. Legal Standard To warrant the entry of a preliminary injunction, the City “must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.” Higher Soc’y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Where the Government is the opposing party, the last two factors merge. Nken v. Holder,
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556 U.S. 418, 435 (2009). Further, under Seventh Circuit precedent, the Court must also “weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017).
B. Likelihood of Success on the Merits This case presents three questions: Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment? We take these questions in turn.
1. Executive Authority under the Byrne JAG Statute Whether the new conditions on the Byrne JAG grant are proper depends on whether Congress conferred authority on the Attorney General to impose them. Congress may permissibly delegate authority and discretion to the Executive Branch through statute. See, Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The contours of the Executive Branch’s authority are circumscribed by statute because the “power to act . . . [is] authoritatively prescribed by Congress.” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297-98 (2013). Accordingly, we must look to the statute to determine the
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Case: 1:17-cv-05720 Document #: 78 Filed: 09/15/17 Page 12 of 41 PageID #:1127
authority of the Attorney General to impose conditions on the Byrne JAG grant. In determining the scope of a statute, we look first to its language. See, United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20 (1983) (internal quotations omitted). The language and design of the statute as a whole may guide the Court in determining the plain meaning of the text. Berkos, 543 F.3d at 396.
The Byrne JAG program was created in 2006 and is codified at 34 U.S.C. §§ 10151-10158 (formerly 42 U.S.C. §§ 3750-3757). These provisions are housed in Subchapter V of Chapter 101 entitled “Justice System Improvement.” Subchapter V enumerates the various “Bureau of Justice Assistance Grant Programs” in three parts: Part A covering the Byrne JAG program, Part B covering “Discretionary Grants,” and Part C discussing “Administrative Provisions.” The authority explicitly granted to the Attorney General within the Byrne JAG statute is limited. The Attorney General is authorized to: determine the “form” of the application, 34 U.S.C. § 10153(a); “reasonably require” “the applicant [to] maintain and report . . . data, records, and
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Case: 1:17-cv-05720 Document #: 78 Filed: 09/15/17 Page 13 of 41 PageID #:1128
information (programmatic and financial),” 34 U.S.C. § 10152(a)(4); and “develop[] guidelines” for “a program assessment” “in coordination with the National Institute of Justice,” 34 U.S.C. § 10152.
In light of the limited express authority the statute confers on the Attorney General, the City argues that Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant. The fact that Congress did authorize the Attorney General to place substantive conditions on other grants, the City contends, indicates an express reservation of that authority. See, 34 U.S.C. § 10142 (formerly 42 U.S.C. § 3742). By failing to direct the Court to any textual authority within the Byrne JAG statute itself, the Attorney General appears to concede the point.
However, the Attorney General argues that Congress expressly authorized imposition of the challenged conditions through a provision of Subchapter I establishing the Office of Justice Programs, which provision allows the Assistant Attorney General to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6) (formerly 42 U.S.C. § 3712(a)(6)). The difficulty with the Attorney General’s reading of the statute is that this grant of authority to the Assistant Attorney General is located
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in an entirely different subchapter governing Office of Justice Programs, whereas Congress codified the later-in-time Byrne JAG program under the aegis of Bureau of Justice Assistant Grant Programs. The statute contains no textual reference that applies this section to the rest of the chapter or specifically to the Byrne JAG program. In fact, Chapter 101 comprises 38 subchapters implicating a broad swath of federal programs and subject matter, ranging from grants for residential substance abuse treatment, see, 34 U.S.C. §§ 10421-10426, to criminal child support enforcement, see, 34 U.S.C. §§ 10361-10367.
Even assuming that § 10102(a) applies to the Byrne JAG grant, reading the statute as the Attorney General advises results in multiple incongruities within the text.
First, it renders superfluous the explicit statutory authority Congress gave to the Director to impose conditions on other Bureau of Justice Assistance grants housed within the same subchapter as the Byrne JAG statute. Congress explicitly provides the Director of the Bureau of Justice Assistance with authority to “determine[]” “terms and conditions” for the discretionary grants itemized in Part B of the statute:
The Director shall have the following duties: [. . .]
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(2) Establishing programs in accordance with part B of subchapter V of this chapter and, following public announcement of such programs, awarding and allocating funds and technical assistance in accordance with the criteria of part B of subchapter V of this chapter, and on terms and conditions determined by the Director to be consistent with part B of subchapter V of this chapter. 34 U.S.C. § 10142 (emphases added). As noted earlier, the Byrne JAG grant is a formula grant located in Part A of Subchapter V. The most natural reading of the statute, then, is that Congress endowed the Director with authority to impose conditions on the discretionary grants under Part B, but specifically withheld that authorization for the formula grant, the Byrne JAG grant, in Part A. See, ibid. The Attorney General’s reading of the statute therefore ignores the ostensibly clear decision by Congress to withhold comparable authority in the Byrne JAG provisions. See, N.L.R.B. v. SW General, Inc., 137 S.Ct. 929, 940 (2017) (noting the expressio unius canon’s application when “circumstances support a sensible inference that the term left out must have been meant to be excluded”) (quotations and alterations omitted). Regardless, it would be quite odd for Congress to give the Attorney General authority to impose conditions on the discretionary grants if it had already provided the Attorney General authority to impose conditions on all grants through Section 10102(a)(6). See, 34 U.S.C. §
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10102(a)(6). This reading would render superfluous the explicit statutory grant of authority to impose conditions on the discretionary grants in Part B. See, Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 811 (7th Cir. 2016) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (quotations and citations omitted).
This conclusion is supported by the fact that Congress specifically conferred authority to impose conditions on other grants housed in the same chapter. Where Congress did so, it did so clearly. For example, Subchapter XIX of Chapter 101 provides federal funds for efforts designed to combat violence against women. See, 34 U.S.C. § 10446-10453 (formerly 42 U.S.C. §§ 3796gg-0 to 3796gg-11). There, Congress expressly authorized the Attorney General to impose conditions when administering the grant:
In disbursing grants under this subchapter, the Attorney General may impose reasonable conditions on grant awards to ensure that the States meet statutory, regulatory, and other program requirements. 34 U.S.C. § 10446(e)(3) (emphasis added). Further, Congress expressly limited its delegation of authority to apply only to funds awarded under that specific subchapter. Ibid. “Where
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Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello, 464 U.S. at 23. What is more, “[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005).
Second, even if there were a basis for importing § 10102(a) into the Byrne JAG statute, it is suspect to ground the Attorney General’s authority to impose the challenged conditions via the power Congress conferred on the Assistant Attorney General. See, 34 U.S.C. § 10102(a)(6); Whitman, 531 U.S. at 468 (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). Furthermore, § 10102(a)(6) provides that the Assistant Attorney General shall exercise “such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 34 U.S.C. § 10102(a)(6) (emphasis added). The language of the statute,
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including its use of the term “may,” implies that any authority of the Assistant Attorney General to place special conditions on grants must flow either from the statute itself or from a delegation of power independently possessed by the Attorney General. See, Jama, 543 U.S. at 346 (“The word ‘may’ customarily connotes discretion.”). Yet the Attorney General in this litigation has pointed to no provision other than § 10102(a)(6) to ground its purported authority to condition Byrne JAG grants.
The Attorney General’s reliance on 34 U.S.C. § 10102(a)(6) is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. See, Gonzales v. Oregon, 546 U.S. 243, 273 (2006) (statutes “should not be read as a series of unrelated and isolated provisions”). Viewed in its context, however, § 10102(a)(6) is better understood as allowing the Attorney General to delegate powers to the Assistant Attorney General to aid in administering the Office of Justice Programs – whereas the Byrne JAG grant is a Bureau of Justice Assistance Program that is both housed in a distinctly different subchapter of Chapter 101 and isolated from other discretionary grants within its own subchapter. Reading § 10102(a)(6) to authorize the Attorney General to impose substantive conditions on all grants under the entire chapter is
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discordant with the specific and clear grants of authority in other sections of the statute.
This conclusion rests on principles of statutory interpretation. It does not imply that Congress cannot impose the conditions at issue. See, Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.”). On the contrary, Congress may well have Spending Clause power to impose the conditions or delegate to the Executive Branch the power to impose them, including the notice and access condition, but it must exert that power through statute. The Executive Branch cannot impose the conditions without Congressional authority, and that authority has not been conferred through Section 10102.
The notice and access conditions therefore exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires. The City has shown a likelihood of success on the merits as to these conditions. We do not reach the question whether the notice and access conditions violate the Spending Clause because, regardless, Congress did not authorize the Attorney General to impose them.
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The Attorney General points to one other statutory provision, 34 U.S.C. § 10153 (formerly 42 U.S.C. § 3752), for the authority to impose the compliance condition specifically. Section 10153(a) lays out the Byrne JAG application requirements, which read in relevant part:
(A) In general To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
[. . .]
(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, if qualified under regulations promulgated by the Attorney General), that—
[. . .] (D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 34 U.S.C. § 10153(a) (emphases added). Specifically, the Attorney General argues that § 10153(a)(5)(D) furnishes the authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373. See, ibid. Undeniably, Section 1373 is a federal law that, by its terms, is applicable
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to the City. The City responds that “all other applicable Federal laws” merely refers to compliance with the narrow body of law governing federal grant-making. See, e.g., 42 U.S.C. § 2000d; 29 U.S.C. § 794(a); 42 U.S.C. § 6102. Both positions are plausible, but for the reasons discussed below, the Attorney General’s position is more consistent with the plain language of the statute.
We, as always, begin with the plain language of the statute. See, Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016). We “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello, 464 U.S. at 20.
The statutory language at issue here is “all other applicable Federal laws.” Black’s Law Dictionary defines “applicable” as “[c]apable of being applied; fit and right to be applied” or “affecting or relating to a particular person, group, or situation; having direct relevance.” Black’s Law Dictionary (10th ed. 2014). This definition embraces both parties’ interpretations. However, the prefatory term in
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§ 10153(a)(5)(D), “all other,” implies a broader meaning than that tolerated by the City’s interpretation. Furthermore, if Congress intended to have the applicant only certify compliance with a limited body of Federal grant-making law, it could have so stated. The City seeks to read into § 10153(a)(5)(D) references to specific federal statutes that are not there.
The City argues that the word “applicable” must have a narrowing effect. (Pl.’s Brief at 19.) However, it is equally reasonable to read “applicable” as referring to the noun, in other words, to refer to the federal laws applicable to the applicant – in this case, Chicago. 34 U.S.C. § 10153(a)(5)(D).
The Court will not stretch the natural meaning of the text, especially here where the City offers no case law or other authority to support its straitjacketed interpretation of “all other applicable Federal laws.” 34 U.S.C. § 10153; see also, Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”) (quotations omitted).
The Court found no directly analogous case, but when interpreting similar constructions, the Supreme Court has broadly interpreted the term “applicable laws.” See, e.g., Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922,
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930 (1990) (interpreting the statutory term “applicable laws” as “laws outside the Act”); see also, Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir. 1995) (noting that “all applicable laws” is “not reasonably or fairly susceptible to an interpretation that does not encompass compliance with state and federal tax laws”); United States Dep’t of Health & Human Servs. v. F.L.R.A., 844 F.2d 1087, 109495 (4th Cir. 1988) (finding statutory requirement that Executive Branch managers follow “applicable laws” to exclude Office of Management and Budget circulars but to encompass a broad panoply of statutory law); United States v. Odneal, 565 F.2d 598, 600 (9th Cir. 1977) (reference to “all applicable laws” relating to admiralty grants “very broad statutory authority”).
With no authority to support a more narrow reading of “applicable . . . laws” in a statutory context, and some authority (albeit in a different context) to support a broad reading of the phrase, combined with the plain meaning of the language, the Court finds that “all other applicable Federal laws” encompasses Section 1373 as applicable to the Byrne JAG applicant – in this case, the City of Chicago. Here, it is the City’s burden as the movant to show otherwise, and it fails to meet that burden on this record. See, Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“It frequently is observed that a
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preliminary injunction is an extraordinary and drastic remedy,

one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.”).

This interpretation leads to a rational reading of the

statute, as Congress could expect an entity receiving federal

funds to certify its compliance with federal law, as the entity

is – independent of receiving federal funds – obligated to

comply.

At oral argument, the City argued that this

interpretation is limitless, allowing the Attorney General to

pick from the United States Code like a menu at a restaurant.

For several reasons, the City’s consternation can be assuaged.

First, the default assumption is that states and localities do

comply with all federal laws. Second, the discretion to demand

certifications of compliance is not limitless. The limitations

on federal grant conditions announced in South Dakota v. Dole,

483 U.S. 203, 207-08 (1987), require that a particular

condition, such as a compliance certification, bear some

relation to the purpose of the federal funds. And further, as

noted at oral argument, any condition attached to federal grants

that is too burdensome defeats itself because a state or local

government could reject the funds and thus undermine the

Attorney General’s attempt to induce compliance with the

condition.

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The City argues that previous conditions have all been tethered to statutes that by their terms apply to federal grant recipients. This may be true, but the fact that the Attorney General has not exercised authority does not necessarily speak to whether he possesses it, especially where the statutory terms embrace such an authorization.
The City has not met its burden to show a likelihood of success on the merits regarding the lack of statutory authority for the compliance condition. The most natural reading of the statute authorizes the Attorney General to require a certification of compliance with all other applicable federal laws, which by the plainest definition includes Section 1373. The City offers no statutory or case law authority to support its narrower reading. Because the lack of authority supporting a narrower interpretation and the plain language of the statute counsel against the City’s interpretation of “all other applicable Federal laws,” the Court finds that the Attorney General has statutory authority to impose the compliance condition on the Byrne JAG grant.
2. Constitutionality of Section 1373 Even with Congressional authorization, the compliance condition must be proper under the Spending Clause, and Section 1373 must pass constitutional muster. As the City has
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not argued that the compliance condition violates the Spending Clause, the Court now turns to the Section 1373 question.
Although Congressional power is substantial, Congress may not simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Travis v. Reno, 163 F.3d 1000, 1003 (7th Cir. 1998). It also cannot require states “to govern according to Congress’ instructions” or circumvent the rule by “conscripting the State’s officers directly.” Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 162 (1992). These prohibitions derive from principles of federalism ingrained in our constitutional system, under which “both the National and State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012); see also, Gregory, 501 U.S. at 459 (“In the tension between federal and state power lies the promise of liberty.”).
With the existence of two sovereigns comes occasional conflict. The Supremacy Clause provides the clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. “As long as it is acting
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within the powers granted it under the Constitution, Congress

may impose its will on the States [and] . . . may legislate in

areas traditionally regulated by the States.” Gregory, 501 U.S.

at 459-60. Further, the presumption attached to every statute

is that it is a constitutional exercise of legislative power.

Reno, 528 U.S. at 148. We start there, attaching the

presumption of constitutionality to Section 1373. Section 1373,

in relevant part, provides that “no person or agency may

prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect

to information regarding the immigration status, lawful or

unlawful, of any individual: (1) Sending such information to,

or requesting or receiving such information from, the

Immigration and Naturalization Service; (2) Maintaining such

information; (3) Exchanging such information with any other

Federal, State, or local government entity.”

8 U.S.C.

§ 1373(b).

It is undisputed that Congress has plenary power to

legislate on the subject of aliens. See, Takahashi v. Fish and

Game Commission, 334 U.S. 410, 419 (1948) (“The Federal

Government has broad constitutional powers in determining what

aliens shall be admitted to the United States, the period they

may remain, regulation of their conduct before naturalization,

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and the terms and conditions of their naturalization.”). Indeed, immigration regulation and enforcement are federal functions. See, Arizona, 567 U.S. at 396-97. Nonetheless, the City argues that Section 1373 violates the Tenth Amendment because it “requires state and local officers to provide information that belongs to Chicago and is available to them only in their official capacity” and requires “state officials to assist in the enforcement of federal statute by regulating private individuals.” (Pl.’s Brief at 20 (internal quotations omitted).) Specifically, the City contends that Section 1373 commandeers state and local governments by “controlling the actions of their employees.” Ibid.
The constitutionality of Section 1373 has been challenged before. The Second Circuit in City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), addressed a facial challenge to Section 1373 in similar circumstances. By executive order, New York City prohibited its employees from voluntarily providing federal immigration authorities with information concerning the immigration status of any alien. Id. at 31-32. The city sued the United States, challenging the constitutionality of Section 1373 under the Tenth Amendment. Id. at 32.
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The Second Circuit found that Section 1373 did not compel state or local governments to enact or administer any federal regulatory program or conscript local employees into its service, and therefore did not run afoul of the rules gleaned from the Supreme Court’s Printz and New York decisions. City of New York, 179 F.3d at 35. Rather, the court held that Section 1373 prohibits local governmental entities and officials only from directly restricting the voluntary exchange of immigration information with the INS. Ibid. The Court found that the Tenth Amendment, normally a shield from federal power, could not be turned into “a sword allowing states and localities to engage in passive resistance that frustrates federal programs.” Ibid. The Second Circuit concluded that Congress may forbid state and local governments from outlawing their officials’ voluntary cooperation with the INS without violating the Tenth Amendment. Ibid. As such, the court nullified New York City’s executive order mandating non-cooperation with federal immigration authorities to the extent it conflicted with Section 1373. Id. at 37.
The City argues that City of New York v. United States contravenes the Seventh Circuit’s decision in Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998), by impermissibly applying a balancing analysis to encroachments on federalism. We agree
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with the City that balancing the weight of a federalism

infringement is inappropriate, not only under this Circuit’s

precedent in Travis, 163 F.3d at 1003, but Supreme Court

precedent as well. See, Printz, 521 U.S. at 932 (noting that,

where “it is the whole object of the law to direct the

functioning of the state executive, and hence to compromise the

structural framework of dual sovereignty, such a ‘balancing’

analysis is inappropriate . . . [N]o comparative assessment of

the various interests can overcome that fundamental defect.”)

(emphasis omitted). However, the logic of City of New York’s

holding is not indebted to an impermissible balancing test.

Rather, City of New York relies on the distinction between an

affirmative obligation and a proscription:

In the case of Sections 434 and [1373], Congress has

not compelled state and local governments to enact or

administer any federal regulatory program. Nor has it

affirmatively conscripted states, localities, or their

employees into the federal government’s service. These

Sections do not directly compel states or localities

to require or prohibit anything.

Rather, they

prohibit state and local governmental entities or

officials only from directly restricting the voluntary

exchange of immigration information with the INS.

City of New York, 179 F.3d at 34-35 (citation omitted). The

improper balancing the City highlights occurs where the Second

Circuit addressed a secondary question yet found the record

insufficient to supplant its prior analysis. Id. at 36-37. The

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prior analysis was its holding – free from any inappropriate balancing – that states do not have the power “to command passive resistance to federal programs.” Id. at 37. Granted, City of New York does not fully address or answer two arguments that are presented in this case: first, that the federal government cannot demand information belonging to the state; and second, that it cannot (even indirectly) control the scope and nature of the duties of state and local employees. Id. at 36. The Second Circuit merely deemed the record insufficient on both scores. Ibid. Regardless, Supreme Court precedent does not command a different result.
The City relies on Printz, but there, the statute at issue required state officers to perform mandatory background checks on prospective handgun purchasers – an affirmative act foisted on local officials by Congress. See, 521 U.S. at 933. The Supreme Court held that the statute violated the Tenth Amendment, because the federal government cannot “command the States’ officers . . . to administer or enforce a federal regulatory program.” Id. at 935. However, Section 1373 does not require the “forced participation” of state officers to “administer or enforce a federal regulatory program.” Id. at 917-18. It merely precludes a state or local government from “prohibit[ing], or in any way restrict[ing], any . . . official”
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from sending, requesting, maintaining, or exchanging “information regarding the immigration status . . . of any individual.” 8 U.S.C. § 1373. In other words, it prohibits prohibitions on local officials’ voluntary participation.
For similar reasons, other cases cited by the City do not advance the ball either. See, e.g., Reno, 528 U.S. at 151 (finding the Driver’s Privacy Protection Act constitutional because “[i]t does not require the [state] Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals”); New York, 505 U.S. at 188 (finding a “take title” provision on nuclear waste unconstitutional because it forced a state to “enact or administer a federal regulatory program” by affirmatively requiring it to legislate a certain way or take ownership of nuclear waste); F.E.R.C. v. Mississippi, 456 U.S. 742, 765 (1982) (finding no Tenth Amendment violation in provisions of the Public Utilities Regulatory Policies Act permitting states to regulate public utilities on the condition that they entertain federal proposals, as the statute contained nothing “directly compelling” states to enact a legislative program).
At its core, this case boils down to whether state and local governments can restrict their officials from voluntarily
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cooperating with a federal scheme. The Court has not been presented with, nor could it uncover, any case holding that the scope of state sovereignty includes the power to forbid state or local employees from voluntarily complying with a federal program. Like the statute at issue in Reno, Section 1373 “does not require” the City “to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno, 528 U.S. at 151. Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. This distinction is meaningful. In this distinction, Section 1373 is consistent with the constitutional principles enunciated in New York and Printz. See, Printz, 521 U.S. at 935; New York, 505 U.S. at 161-63. Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
It is worth noting, however, that this case poses a unique and novel constitutional question. The characterization of
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Section 1373 as a prohibition that requires no affirmative state action accurately conveys the literal text of the statute, but it does not accurately portray its practical import. Section 1373 mandates that state and city employees have the option of furnishing to the INS information on individuals’ immigration status while the employee is acting in his or her capacity as a state or local official. The corollary is that local governments cannot both comply with Section 1373 and discipline an employee for choosing to spend his or her time assisting in the enforcement of federal immigration laws. If a state or local government cannot control the scope of its officials’ employment by limiting the extent of their paid time spent cooperating with the INS, then Section 1373 may practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program. In this way, Section 1373 may implicate the logic underlying the Printz decision more than it does the Reno rationale. See, Printz, 521 U.S. at 929-30.
Read literally, Section 1373 imposes no affirmative obligation on local governments. But, by leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers’ ability to extricate their state or municipality
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from involvement in a federal program. Under current case law,

however, only affirmative demands on states constitute a

violation of the Tenth Amendment. Here, we follow binding

Supreme Court precedent and the persuasive authority of the

Second Circuit, neither of which elevates federalism to the

degree urged by the City here. A decision to the contrary would

require an expansion of the law that only a higher court could

establish.

Accordingly, the City has not shown a likelihood of success

on the merits on the constitutionality of Section 1373.

C. Irreparable Harm

The City has demonstrated the second factor of the

preliminary injunction analysis – irreparable harm.

In

assessing irreparable harm, courts must analyze whether the

“harm . . . cannot be prevented or fully rectified by the final

judgment after trial.” Roland Mach. Co. v. Dresser Indus.,

Inc., 749 F.2d 380, 386 (7th Cir. 1984). Injury to reputation

or goodwill is not easily measurable in monetary terms, and so

often is deemed irreparable. Stuller, Inc. v. Steak N Shake

Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012). Here, the

City contends that, in the absence of an injunction, it must

either forego the Byrne JAG grant funds it has specifically

earmarked for life-saving technology that detects when and where

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gunshots are fired (P.I. Hrg. Tr. at 31:8-32:9) or accede to the new conditions the Attorney General has placed on the funds and suffer the collapse of trust between local law enforcement and immigrant communities that is essential to ferreting out crime.
Two recent cases have dealt with preliminary injunctions regarding facts similar to those before the Court. Though the legal issues presented in these cases are different than those at bar, the harms alleged are sufficiently analogous. In both cases, the district court found that the plaintiff established irreparable injury. In City of El Cenizo v. State, the court entered a preliminary injunction and credited the plaintiff’s assertion that it would suffer two forms of irreparable harm: (1) “Trust between local law enforcement and the people they serve, which police departments have worked so hard to promote, will be substantially eroded and result in increased crime rates”; and (2) “Local jurisdictions face severe economic consequences . . . including . . . the loss of grant money.” City of El Cenizo v. State, No. SA-17-CV-404-OLG, 2017 WL 3763098, at *39 (W.D. Tex. Aug. 30, 2017). In County of Santa Clara v. Trump, the court found that the plaintiff established a “constitutional injury” and irreparable harm “by being forced to comply with an unconstitutional law or else face financial injury.” County of Santa Clara v. Trump, No. 17-CV-00485-WHO,
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2017 WL 1459081, at *27 (N.D. Cal. Apr. 25, 2017), reconsideration denied, No. 17-CV-00485-WHO, 2017 WL 3086064 (N.D. Cal. July 20, 2017).
The harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable. Once such trust is lost, it cannot be repaired through an award of money damages, making it the type of harm that is especially hard to “rectif[y] by [a] final judgment.” Roland Mach., 749 F.2d at 386.
The Attorney General minimizes the impact of the relatively modest Byrne JAG funds on public safety and argues that the City could, by simply declining the funds, avoid any loss of trust between local law enforcement and the immigrant communities. However, a “Hobson’s choice” can establish irreparable harm. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). In Morales, the Supreme Court held that a forced choice between acquiescing to a law that the plaintiff believed to be unconstitutional and violating the law under pain of liability was sufficient to establish irreparable injury. Ibid. In the same way, forcing the City either to decline the grant funds based on what it believes to be unconstitutional conditions or accept them and face an irreparable harm, is the type of “Hobson’s choice” that supports irreparable harm. Further, a
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constitutional violation may be sufficient to establish
irreparable injury as a matter of law. See, 11A Charles Alan
Wright et al., Federal Practice & Procedure § 2948.1 (2d ed.
1995) (“When an alleged deprivation of a constitutional right is
involved, most courts hold that no further showing of
irreparable injury is necessary.”); see also, Ezell v. City of
Chicago, 651 F.3d 684, 698–700 (7th Cir. 2011); Doe v. Mundy,
514 F.2d 1179, 1183 (7th Cir. 1975).
The lack of injury afflicting the Attorney General in the
absence of an injunction buttresses the City’s showing of
irreparable harm. The Seventh Circuit has described this factor
as follows:
In deciding whether to grant a preliminary injunction, the court must also consider any irreparable harm that the defendant might suffer from the injunction—harm that would not be either cured by the defendant’s ultimately prevailing in the trial on the merits or fully compensated by the injunction bond that Rule 65(c) of the Federal Rules of Civil Procedure requires the district court to make the plaintiff post. The cases do not usually speak of the defendant’s irreparable harm, but the qualification is implicit; if the defendant will not be irreversibly injured by the injunction because a final judgment in his favor would make him whole, the injunction will not really harm him. But since the defendant may suffer irreparable harm from the entry of a preliminary injunction, the court must not only determine that the plaintiff will suffer irreparable harm if the preliminary injunction is denied—a threshold requirement for granting a preliminary injunction—but also weigh that harm against any irreparable harm that
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the defendant can show he will suffer if the injunction is granted. Roland Mach., 749 F.2d at 387 (emphasis in original). Although harm to federal interests should not be diminished, a delay in the imposition of new conditions that have yet to go into effect will likely not cause any harm akin to that alleged by the City. The Attorney General has put forth no comparable claim that a delay in imposition of the new Byrne JAG conditions would permanently harm community relationships or any other interest that would be difficult to remedy through money damages. See, Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001) (noting that maintaining the status quo was unlikely to affect a substantial public interest in the short time of the injunction). Thus, the Court finds that the City has established that it would suffer irreparable harm if a preliminary injunction is not entered.
D. Balancing of Equities and the Public Interest The remaining two factors in the preliminary injunction analysis merge where the Government is a party. Nken, 556 U.S. at 435. These two factors are not outcome-determinative here. Both sides can claim that concerns of public safety justify their positions.
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The City and amici strongly emphasize the studies and other evidence demonstrating that sanctuary cities are safer than their counterparts. Although both parties before the Court have emphatically stressed the importance of their policy choice to decrease crime and support law enforcement – with Chicago emphasizing the benefits that flow from immigrant communities freely reporting crimes and acting as witnesses, and the Attorney General emphasizing the need to enforce federal immigration law – choosing between competing public policies is outside the realm of judicial expertise and is best left to the legislative and executive branch. See, Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (noting that the courts are “vested with the authority to interpret the law; [they] possess neither the expertise nor the prerogative to make policy judgments”).
Accordingly, the final two factors favor neither party. Both parties have strong public policy arguments, the wisdom of which is not for the Court to decide. Accordingly, the Court finds that balancing the equities and weighing the public interest do not tip the scale in favor of either party.
III. CONCLUSION For the reasons stated herein, the Court grants the City a preliminary injunction against the Attorney General’s imposition
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of the notice and access conditions on the Byrne JAG grant. The City has established a likelihood of success on the merits as to these two conditions and irreparable harm if an injunction does not issue, and the other two preliminary injunction factors do not sway the analysis. This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction. See, Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017).
The Court denies the City’s Motion for a Preliminary Injunction with respect to the compliance condition, because the City has failed to establish a likelihood of success on the merits.
IT IS SO ORDERED.

Dated: September 15, 2017

Harry D. Leinenweber, Judge United States District Court

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 No. 17-2991
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

CITY OF CHICAGO,
v. JEFFERSON B. SESSIONS, III, Attorney General of the United States,

Plaintiff-Appellee, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
No. 17-cv-05720 The Honorable Harry D. Leinenweber, Judge Presiding
_________

BRIEF FOR PLAINTIFF-APPELLEE _________

JAMIE S. GORELICK DAVID W. OGDEN ARI HOLTZBLATT ARI SAVITZKY MOLLY M. JENNINGS TIFFANY WRIGHT BRIDGET FAHEY* WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE ADRIEL I. CEPEDA DERIEUX WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar.

EDWARD N. SISKEL Corporation Counsel of the City of Chicago BENNA RUTH SOLOMON Deputy Corporation Counsel MYRIAM ZRECNY KASPER ANDREW W. WORSECK Chief Assistant Corporation Counsel JUSTIN A. HOUPPERT SCOTT D. SPEARS Assistant Corporation Counsel 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-7764
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN TAL CHAIKEN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700

TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENTS TABLE OF AUTHORITIES ..............................................................................................iii JURISDICTIONAL STATEMENT................................................................................... 1 ISSUES PRESENTED ......................................................................................................... 1 STATEMENT OF THE CASE .......................................................................................... 1
A. Chicago’s Welcoming City Ordinance .......................................................... 1 B. The Byrne JAG Program................................................................................ 4 C. The Attorney General’s New Byrne JAG Policy......................................... 7 D. District Court Proceedings............................................................................. 9 SUMMARY OF ARGUMENT ......................................................................................... 14 ARGUMENT ....................................................................................................................... 16 I. THE ATTORNEY GENERAL’S NOTICE AND ACCESS POLICY IS ULTRA VIRES.................................................................................. 18 A. The Byrne JAG Statute Does Not Authorize The Notice
And Access Policy ......................................................................................... 19 B. 34 U.S.C. § 10102 Does Not Authorize The Notice And
Access Policy.................................................................................................. 24 1. The text of section 10102(a)(6) precludes the
Attorney General’s reading ............................................................... 24 2. Statutory context confirms that the Attorney
General’s reliance on section 10102(a)(6) is misplaced............................................................................................. 29
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C. Neither The Attorney General’s Policy Priorities, Nor The Structure Of Immigration Law, Authorizes The Notice And Access Policy ......................................................................................... 34
II. THE DISTRICT COURT PROPERLY ENJOINED THE ATTORNEY GENERAL’S UNLAWFUL NOTICE AND ACCESS POLICY ACROSS-THE-BOARD....................................................... 39 A. Chicago Has Standing To Seek An Injunction That Benefits Other Jurisdictions Harmed By The Same Unlawful And Unconstitutional Policy That Harms Chicago ........................................................................................................... 40 B. The District Court Acted Within Its Discretion In Enjoining The New Conditions .................................................................. 47
CONCLUSION ................................................................................................................... 53 STATUTORY ADDENDUM CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES CASES Page
Alvarez v. Smith, 558 U.S. 87 (2009) .................................................................................... 45 Amalgamated Transit Union v. Skinner, 894 F.2d 1362 (D.C. Cir. 1990) ........................... 35 Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) ................................................................. 50 Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809)........................................... 44 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987)................................................................... 50 Brown Shoe Co. v. United States, 370 U.S. 294 (1962) .......................................................... 44 Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................... 40, 49 Central United Life Insurance Co. v. Burwell, 827 F.3d 70 (D.C. Cir. 2016) ........................ 18 Chickasaw Nation v. United States, 534 U.S. 84 (2001) ........................................................ 25 City of Arlington v. FCC, 133 S. Ct. 1863 (2013)................................................................. 18 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................. 45 City of Los Angeles v. McLaughlin, 865 F.2d 1084 (9th Cir. 1989).................................. 4, 19 City of Philadelphia v. Sessions, No. CV 17-3894, 2017 WL 5489476
(E.D. Pa. Nov. 15, 2017)..............................................................................19, 28, 36 County of Santa Clara v. Trump, Nos. 17-cv-00485 & 17-cv-00574,
2017 WL 5569835 (N.D. Cal. Nov. 20, 2017)......................................................... 7 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................40, 44, 45 Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977).............................................. 48 Decker v. O’Donnell, 661 F.2d 598 (7th Cir. 1980)........................................................ 43, 48 Epsilon Electronics, Inc. v. U.S. Department of Treasury, Office of Foreign Assets
Control, 857 F.3d 913 (D.C. Cir. 2017).................................................................... 25 Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) ...................................................................... 42
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Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000)................................................................................................... 45
Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424 (7th Cir. 2006).................... 25, 30 Gautreaux v. Chicago Housing Authority, 690 F.2d 601 (7th Cir. 1982) .............................. 47 Gonzales v. Oregon, 546 U.S. 243 (2006)......................................................................... 18, 27 Gregory v. Ashcroft, 501 U.S. 452 (1991)......................................................................... 18, 38 H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827 (7th Cir.
2012) ........................................................................................................................... 48 Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) ....................................................... 43 Harris County, Texas v. Gist, 976 F. Supp. 601 (S.D. Tex. 1996) ........................................ 6 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) .................................................................. 51 Hibbs v. Winn, 542 U.S. 88 (2004) ....................................................................................... 44 Horina v. City of Granite City, Illinois, 538 F.3d 624 (7th Cir. 2008) .................................. 42 In re Motors Liquidation Co., 829 F.3d 135 (2d Cir. 2016) .................................................. 51 International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) .................. 51 Jama v. ICE, 543 U.S. 335 (2005) ........................................................................................ 20 Koo v. McBride, 124 F.3d 869 (7th Cir. 1997)................................................................ 13, 40 Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008) .......................................................... 45 Lineback v. Spurlino Materials, LLC, 546 F.3d 491 (7th Cir. 2008) ................................... 40 Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) .......................... 50 Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986) ................................. 18, 35 Marquette Cement Manufacturing Co. v. FTC, 147 F.2d 589 (7th Cir. 1945)....................... 35 McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949)........................................................ 49 McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997) .................................................. 46
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Missouri v. Jenkins, 515 U.S. 70 (1995)................................................................................. 40 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .................................................. 45 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) .................................................. 32 National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)..................... 32 NLRB v. Express Publishing Co., 312 U.S. 426 (1941)........................................................ 40 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).......................................................................... 42 Owner-Operator Independent Drivers Ass’n v. Federal Motor Carrier Safety
Administration, 656 F.3d 580 (7th Cir. 2011) .......................................................... 43 P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ......................................................................... 26 Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981) ........................27, 35, 39 Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) .............................................................. 47 Printz v. United States, 521 U.S. 898 (1997) ......................................................................... 37 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) ...................... 32 Russello v. United States, 464 U.S. 16 (1983)......................................................................... 20 Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302 (7th Cir.
2010) ...............................................................................................................16, 48, 49 Scherr v. Marriott International, Inc., 703 F.3d 1069 (7th Cir. 2013).............................. 46, 47 Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) .......................... 18 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...................................................................... 41 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) ......................................... 43 Summers v. Earth Island Institute, 555 U.S. 488 (2009) .................................................. 40, 45 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) ................................ 47 Texas v. United States, 809 F.3d 134 (5th Cir. 2015)........................................................... 43 Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) ............................. 43
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Trump v. International Refugee Assistance Project, 138 S. Ct. 353 (2017) (mem.).................. 51 Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)....................... 50 Wabash Valley Power Ass’n v. Rural Electrification Administration, 988 F.2d
1480 (7th Cir. 1993) .................................................................................................. 35 Warth v. Seldin, 422 U.S. 490 (1975).................................................................................... 45 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).................................................... 50, 51 Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001)................................................ 27 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) .............................................. 42 Wisconsin v. Constantineau, 400 U.S. 433 (1971) .................................................................. 42 Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) ............................................ 42
CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const.
art. III, § 1 .................................................................................................................. 40 art. III, § 2 .................................................................................................................. 40 5 U.S.C. § 706........................................................................................................................ 42 8 U.S.C. § 1226 ......................................................................................................................... 37 § 1231 ......................................................................................................................... 37 § 1357 ......................................................................................................................... 38 § 1373 ..................................................................................................................... 9, 29 25 U.S.C. § 1652 ................................................................................................................... 20
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34 U.S.C. § 10102 ..................................................................................................................passim § 10142 ....................................................................................................................... 32 § 10152 .................................................................................................... 4, 5, 6, 21, 30 § 10153 ............................................................................................................... 5, 6, 30 § 10156 ................................................................................................................... 4, 21 § 10157 .......................................................................................................5, 22, 30, 31 §§ 10332-10334.......................................................................................................... 31 § 10446 ....................................................................................................................... 34 §§ 10591-10593.......................................................................................................... 31 § 10631 ....................................................................................................................... 32 § 20927 ....................................................................................................................... 22 § 30307 ....................................................................................................................... 22 § 60105 ....................................................................................................................... 22
42 U.S.C. § 1769e........................................................................................................................ 20 § 3796gg-1 .................................................................................................................. 20 § 10305 ....................................................................................................................... 20
REGULATIONS AND RULES
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.205 ........................................ 28
28 C.F.R. § 66.12 .................................................................................................................. 28
Fed. R. Civ. P. Rule 23, Advisory Committee Notes...................................................................... 50 Rule 26........................................................................................................................ 50 Rule 65.................................................................................................................. 40, 50 Rule 71........................................................................................................................ 50
LEGISLATIVE MATERIALS
Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2(b)(2) (2015) .................................. 23
Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015).......................................................................................................................... 23
H.R. Rep. No. 109-233 (2005) .................................................................................. 6, 15, 23
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Reauthorization of the United States Department of Justice: Criminal Law Enforcement: Hearing Before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 108th Cong. (2003)............................................................................................................................ 6 OTHER AUTHORITIES
Allen, Kenneth J., Federal Grant Practice (2017)............................................................ 19, 28 Black’s Law Dictionary (10th ed. 2014)................................................................................. 26 Federalist No. 51 (Madison)................................................................................................ 38 U.S. Department of Justice, Office of Justice Programs, Awards Made for
Solicitation: Edward Byrne Memorial Justice Assistance Grant (JAG) Program - Local Solicitation (as of Dec. 27, 2017), available at goo.gl/df2Yab ............................................................................................................. 4 Wright, Charles Alan & Arthur R. Miller, Federal Practice & Procedure (3d ed. 2017) .............................................................................................................. 48
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JURISDICTIONAL STATEMENT The jurisdictional statement of defendant-appellant Jefferson B. Sessions, III, is complete and correct.
ISSUES PRESENTED 1. Whether the Attorney General can impose grant conditions on the Byrne Justice Assistance Grant (“Byrne JAG”) formula grant program that are not authorized by law and contradict the stated purposes of the grant program. 2. Whether the district court exceeded its authority or abused its discretion in enjoining the Attorney General from applying to Byrne JAG recipients other than Chicago the unlawful and unconstitutional policy reflected in his grant conditions.
STATEMENT OF THE CASE A. Chicago’s Welcoming City Ordinance Since the 1980s, Chicago has refined a “Welcoming City” policy designed to build trust and cooperation between the Chicago Police Department and local immigrant communities. At its core, the policy prioritizes local crime-fighting and public safety over the policing of federal civil immigration infractions. R.219-228.1 In 2006, Chicago’s City Council formalized the Welcoming City policy— previously prescribed through mayoral executive orders—by unanimously adopting the Welcoming City Ordinance (“WCO”). R.229-235. In response to the federal 1 We cite the pages of the record on appeal as “R.__,” the Attorney General’s opening brief as “Sessions Br. __,” the Attorney General’s Short Appendix as “SA__,” and the Attorney General’s Appendix as “App.__.”
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Executive’s increased pressure to assist in civil immigration enforcement, the WCO rejected spending “limited local resources on traditionally federal functions.” R.231. City leaders believed that acceding to federal pressure to assist in immigration enforcement would “threat[en] immigrant and minority profiling and harassment” and thereby “chil[l]” effective local law enforcement as “fear of deportation” led “witnesses and victims” to avoid cooperation with police. R.232.
In 2012, Chicago further revised the WCO to “clarify the communications and enforcement relationship between the City and the federal government.” R.239. These clarifications were necessary to achieve “[o]ne of the City’s most important goals”: “enhanc[ing] the City’s relationship with the immigrant communities.” Id. The 2012 WCO reaffirmed that removing barriers to “the cooperation of all persons, both documented citizens and those without documentation status,” with law enforcement was “essential to prevent and solve crimes and maintain public order, safety, and security in the entire City.” Id.
The current version of the WCO thus limits Chicago’s participation in federal immigration enforcement, while providing exceptions for individuals who are wanted on a criminal warrant, have been convicted of a felony, are a defendant on a felony charge, or are a known gang member. R.244-245 (Municipal Code of Chicago, Ill. (“MCC”) § 2-173-042). The WCO prohibits City officials from collecting, investigating, or disclosing an individual’s citizenship or immigration status unless required to do so by court order or state or federal law, or unless disclosure has been
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authorized in writing. R.244 (MCC §§ 2-173-020, 2-173-030). And, most relevant here, the ordinance bars City officials from spending time responding to Immigration and Customs Enforcement (“ICE”) inquiries about the “custody status or release date” of a person detained by Chicago, “permit[ting] ICE agents access” to City detainees, or “permit[ting] ICE agents use of [City] facilities for investigative interviews,” unless the detainee in question is a known gang member or is suspected of or has been convicted of a serious crime. R.245 (MCC § 2-173-042(b)(1)).
The WCO reflects Chicago’s deliberate choice to focus police resources on investigating serious crimes and promote police engagement with all its residents, including immigrant communities. Under the WCO, police officers engage with federal immigration enforcement to fight serious crime, while also advancing Chicago’s goal of fostering trust with all its residents. R.202-203. This policy is sound: As one study of so-called “sanctuary” jurisdictions found, “crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties . . . controlling for population characteristics.” R.333. A coalition of police chiefs has explained that their on-the-ground experience is consistent with that insight: “[B]uild[ing] trusting and supportive relationships with immigrant communities,” they said, “is essential to reducing crime and helping victims.” R.354355.
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B. The Byrne JAG Program The Byrne JAG program “is the primary provider of federal criminal justice funding to States and units of local government.” App.5. For Fiscal Year (“FY”) 2016, Congress appropriated $476 million for the Byrne JAG program, R.953, and more than 1,000 grants were awarded to state and local governments for a wide range of purposes—from prosecution of drug offenses to purchase of body-worn cameras to enhancement of crime scene investigation tools. Department of Justice, Office of Justice Programs, Awards Made for Solicitation: Edward Byrne Memorial Justice Assistance Grant (JAG) Program - Local Solicitation (as of Dec. 27, 2017), available at goo.gl/df2Yab. Congress designed the Byrne JAG program to allow local flexibility and discretion. The Byrne JAG program is a formula grant, under which the Attorney General “shall allocate” funds, 34 U.S.C. § 10156(d)(2)(A), “in accordance with” a formula based on population and crime statistics, id. § 10152(a)(1); see § 10156(d)(2)(A). Formula grants “are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Consistent with the nature of formula grants, the Byrne JAG statute circumscribes the Attorney General’s process for distributing Byrne JAG funds, affording only narrow discretion over certain non-substantive aspects of the program. First, the Attorney General must follow the statutory formula to determine allotments for each state and local government. 34 U.S.C. § 10156. As part of this process, the
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Attorney General is authorized to “reserve not more than 5 percent” of the total funds allocated to the program for specific purposes after a finding that such reservation is “necessary” to address “extraordinary increases in crime” or to “mitigate significant programmatic harm” caused by the formula. Id. § 10157(b). There is no further authority in the statute to deviate from the formula. Second, the Attorney General invites jurisdictions to claim their allotments by submitting an application that includes several largely administrative components expressly outlined in the statute. Id. § 10153.
The Attorney General’s authority to define or modify the components of the Byrne JAG application is similarly circumscribed. He may specify the “form” of the application. 34 U.S.C. § 10153(a). He may specify what “data, records, and information (programmatic and financial)” applicants can be “reasonably” required to provide to ensure programmatic and financial integrity. Id. § 10153(a)(4). He can “coordinat[e] with the National Institute of Justice” to develop a mandatory “program assessment component” to measure the success of funded programs. Id. § 10152(c). And he can require applicants to “comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D). There is no provision authorizing him to alter the application’s components, or to add new requirements.
The statute requires only one substantive component for Byrne JAG applications: A plan indicating how the applicant will use its funds within one or more of eight broadly defined programmatic areas, 34 U.S.C. § 10153(a)(6), ranging
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from “[l]aw enforcement” to “[d]rug treatment” to “crime victim” support, id. § 10152(a)(1)(A)-(H). An applicant is entitled to its Byrne JAG allotment as long as it uses funds to advance “any one” of those objectives. Id. §§ 10152(a)(1)-(2), 10153(a)(6)(B). The result is a grant program that guarantees law enforcement funding to state and local governments throughout the Nation, leaving to those governments the decision how best to spend the money.
The Byrne JAG program’s deference to local law enforcement priorities and policies is no accident: It is the program’s core objective. Congress created the current Byrne JAG program in 2005 by merging two funding programs for state and local criminal justice initiatives, the Local Law Enforcement Block Grant (“LLEBG”) program and the Byrne Grant program. H.R. Rep. No. 109-233, at 88-89 (2005). These predecessor programs afforded state and local governments significant discretion over the use of federal funds. E.g., Harris Cnty, Texas v. Gist, 976 F. Supp. 601, 605-606 (S.D. Tex. 1996) (“Under the [LLEBG] program, local governments receive federal funds to supplement their law enforcement budgets and have broad control over the decision how to use the funds.”).
In combining these prior programs, Congress sought to give state and local governments even “more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89; see also Reauthorization of the U.S. Dep’t of Justice: Criminal Law Enforcement: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 108th
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Cong. 68 (2003) (testimony of Deborah Daniels, Assistant Attorney General for the Office of Justice Programs) (expressing support for the new Byrne JAG program to “permit States and communities to improve all aspects of their criminal justice and correction systems” by giving them “more discretion”).
Chicago has received Byrne JAG funds every year since the program’s inception, including $33 million for the purchase of nearly 1,000 police cruisers and funds for the Police Department’s Force for Good Program, which helps nonprofit organizations working to reduce violence in Chicago’s most at-risk neighborhoods. R.206-207, R.413-414. Chicago’s FY2017 application sought funds for several local policing priorities, including to expand Chicago’s use of ShotSpotter technology to help officers pinpoint the location of shooting incidents faster and with more precision. R.934.
C. The Attorney General’s New Byrne JAG Policy From the start, this Administration has singled out America’s largest and most diverse cities because of policies, like Chicago’s WCO, that aim to foster cooperation between police and immigrant communities. President Trump issued Executive Order 13768 during his first week in office, which threatened to deny federal money to and take enforcement action against an undefined group of so-called “sanctuary jurisdictions.” That order was preliminarily enjoined in April, and has now been permanently enjoined, for violating numerous constitutional safeguards, including separation of powers. County of Santa Clara v. Trump, Nos. 17-cv-00574, 17-cv-00485,
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2017 WL 5569835 (N.D. Cal. Nov. 20, 2017), appeal filed, No. 17-17480 (9th Cir. Dec.
14, 2017).2
The Administration next sought to repurpose the Byrne JAG program to do
what it had been enjoined from doing by executive order. In August 2017, the
Department of Justice (“DOJ”) released the FY2017 Byrne JAG application. It
contained two new conditions seeking to press local law enforcement officers into
federal civil immigration enforcement efforts. App.30.
First, the new “notice” condition would require grant recipients to “provide at
least 48 hours’ advance notice to [the Department of Homeland Security (“DHS”)]
regarding the scheduled release date and time of an alien in the jurisdiction’s custody
when DHS requests such notice to take custody of the alien pursuant to the
Immigration and Nationality Act.” App.30. Among other things, this condition
would require grantees to hold any detainee subject to a notice request for at least 48
2 In July 2017, President Trump referred to immigrants as “predators and criminal aliens who poison our communities with drugs and prey on innocent young people,” and avowed that those “animals” would “find no safe haven anywhere in our country.” R.42. He promised a “nationwide crackdown on sanctuary cities.” Id. Attorney General Sessions has likewise attacked “sanctuary jurisdictions”—even going so far as to allege that “sanctuary” jurisdictions “encourage . . . human trafficking” and “shelter and protect lethal gangs and transnational criminal organizations like Latin Kings and MS-13.” R.42, R.874. And in a speech delivered after Chicago filed this lawsuit, the Attorney General mischaracterized Chicago’s Welcoming City policy in particular—asserting that “if you enter the country . . . with a criminal record and get to Chicago, [Chicago] will not even support deporting you even after you commit a serious crime against one of our citizens.” R.874. That is false: The WCO explicitly permits cooperation regarding serious crimes.
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hours, even if the detainee would otherwise be released sooner. Second, the new “access” condition would require grant recipients to “permit [DHS personnel] to access any correctional or detention facility in order to meet with” and interrogate anyone suspected of being a non-citizen. Id.3
The new conditions conflict with the WCO’s limitations on notifying ICE about the “custody status or release date” of detainees, on “permit[ing] ICE agents access” to City detainees, and on “permit[ing] ICE agents use of [City] facilities for investigative interviews.” R.245 (MCC § 2-173-042(b)(1)). And, as written, the requirement to provide DHS “at least 48 hours’ advance notice” was effectively impossible for Chicago, which exclusively operates temporary “lockup” facilities where arrestees are held only briefly before a probable cause hearing or other initial proceeding in the Circuit Court of Cook County. Chicago Police Department General Order G06-01 prohibits detaining most individuals for more than 48 hours. R.304-305. And Chicago holds the vast majority of individuals fewer than 24 hours— and often significantly fewer, such as when an arrestee is released on his own recognizance or charges are not filed. R.51.
D. District Court Proceedings On August 7, less than a week after the release of the FY2017 Byrne JAG application, Chicago filed suit challenging the Attorney General’s new notice and 3 The Attorney General has also sought to impose a third condition, which relates to compliance with 8 U.S.C. § 1373. The district court did not enjoin that condition, and it is not a part of this appeal.
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access policy, and within days moved for a preliminary injunction to maintain the status quo and prevent the Attorney General from imposing the conditions on FY2017 Byrne JAG funds. R.31, R.161. Chicago argued that the policy was unlawful because no provision of the Byrne JAG statute or any other statute granted the Attorney General authority to impose substantive policy conditions on Byrne JAG funds, and because such open-ended conditioning authority would conflict with numerous express constraints in the Byrne JAG statute. R.184-187. Chicago further argued that by impermissibly exercising Spending Clause powers assigned to Congress, the Attorney General’s policy violated separation of powers principles and so was unconstitutional. R.191-192.
Chicago’s motion for preliminary injunction, filed on August 10, sought to enjoin the Attorney General from applying the new policy to any applicant because the Byrne JAG program is a formula grant program that Congress intended to be administered uniformly. R.851. Furthermore, the legal issue is identical for all Byrne JAG applicants—the Attorney General’s new conditions are no more lawful for other jurisdictions than they are for Chicago.
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In opposing the preliminary injunction, the Attorney General pointed to no
provision in the Byrne JAG statute authorizing the new notice and access policy.4
Rather, he argued that he was authorized to override the Byrne JAG statute’s
mandatory formula based on a single clause in a separate statute describing the role of
one Assistant Attorney General. That provision, 34 U.S.C. § 10102(a)(6), follows a
list of specific duties and responsibilities, which range from maintaining liaison with
other officials to coordinating the offices that report to the Assistant Attorney
General, and provides that he may:
exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
On September 15, a week after hearing argument, the district court issued an
opinion and order enjoining the notice and access policy. The court observed that the
Attorney General “fail[ed] to direct the Court to any textual authority within the
Byrne JAG statute itself” to impose the conditions. SA13. And the district court
rejected the notion that 34 U.S.C. § 10102(a)(6) granted such authority. The court
4 In connection with this filing, the Attorney General also rewrote the notice condition, which had required grantees to “provide at least 48 hours’ advance notice” regarding the scheduled release of an alien. As revised, the notice condition required notice “as early as practicable (at least 48 hours, if possible)” and stated that no grantee would be required to “maintain (or detain) any individual in custody beyond the date and time the individual would have been released” absent the condition. App.62. As Chicago explained in its motion for preliminary injunction, the original requirement to “provide at least 48 hours’ advance notice” violated the Fourth Amendment and was impossible to implement for temporary lock-up facilities, like those that Chicago operates. R.182, R.188-199.
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first expressed doubt that the provision applied to the Byrne JAG program at all, since it appears in a separate provision of chapter 101. SA18-19. Assuming that it did apply, the court emphasized the limiting effect of the first half of the provision, which authorizes “such other powers as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General” and then illustrates those powers with the references to “placing special conditions” and “determining priority purposes.” SA18. The court concluded that any power to “place special conditions on grants must flow either from the statute itself or from a delegation of power independently possessed by the Attorney General.” Id. And because the Attorney General pointed to no such source of statutory authority, the court concluded that the conditions “exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” SA19.
The district court additionally found that the conditions—which, if acceded to, would cause “the collapse of trust between local law enforcement and immigrant communities that is essential to ferreting out crime,” SA35-36—irreparably harmed Chicago. By contrast, the court perceived a “lack of injury afflicting the Attorney General” from an injunction that would restore the status quo. SA38-39. The court accordingly enjoined the “imposition of the notice and access conditions on the . . . JAG grant,” for all grant recipients across the country, SA40-41, rather than for Chicago alone, because there was “no reason to think that the legal issues present in
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this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction,” SA41.
The Attorney General filed a notice of appeal accompanied by a motion to stay the order’s nationwide effect. R.20, R.1071. That motion argued for the first time that the injunction violated Article III because Chicago supposedly lacked standing to obtain relief that also benefits others. R.1075-1078.
The district court denied the motion for a stay pending appeal, affirming Chicago’s standing to seek a nationwide injunction based on the bedrock principle that “[o]nce a constitutional violation has been shown, ‘the nature of the remedy must be determined by the nature and scope of the constitutional violation,’” even if that remedy benefits those not before the court. App.103 (quoting Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997)). The Constitution, the court noted, “vests a district court with ‘the judicial Power of the United States’” and “[t]his power is not limited to the jurisdiction in which the district court sits.” App.104. The court further noted that this was an appropriate use of its discretion because “the Attorney General’s authority, or lack thereof, [to impose the notice and access conditions] will not vary by
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jurisdiction.” Id. The Attorney General sought the same relief from this court, which likewise declined to stay the preliminary injunction. 7th Cir. Dkt. 33.5
SUMMARY OF ARGUMENT This case involves two programs critical to public safety in the City of Chicago: Chicago’s decades-old Welcoming City policy, designed to build trust and cooperation between the police and local immigrant communities, so that Chicago can more effectively fight crime; and the federal Byrne JAG formula grant program, which has long provided much-needed federal funds to local law enforcement in Chicago, as well as more than a thousand other local governments and virtually every State in the Nation. The district court properly entered a preliminary injunction to bar the Attorney General’s new notice and access policy, which exceeds statutory limits on congressionally allocated funds for state and local governments across the country. The Attorney General lacks authority to impose the notice and access conditions on Byrne JAG recipients. Those conditions are nowhere authorized by the Byrne JAG statute, which grants the Attorney General only narrowly circumscribed authority over the distribution of Byrne JAG funds. The minimal role for executive discretion in the Byrne JAG program is by design: The program’s objective is to “give State and local governments more flexibility to spend [federal] money for 5 While the motion to stay was pending in the district court, the U.S. Conference of Mayors (“USCM”), representing the interests of 1,400 cities nationwide, including numerous Byrne JAG grant applicants, moved to intervene. R.1089. The district court denied that motion, in part because “[t]he nationwide injunction currently in force is sufficient to protect the interests of [USCM’s] members.” R.1583.
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programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89.
Rather than attempt to locate authority in the Byrne JAG statute for imposing his own federal policy, the Attorney General points to an obscure provision specifying the duties of the Assistant Attorney General for the Office of Justice Programs (“OJP”), 34 U.S.C. § 10102. That provision does not confer the unfettered power the Attorney General claims. Read in context, section 10102 merely authorizes the Attorney General to assign his own powers to the Assistant Attorney General, and does not create new authority.
The Attorney General finally suggests that the “structure” and “implicit premise[s]” of the Immigration and Nationality Act (“INA”) grant him the power to require state and local governments to participate in federal immigration enforcement. That is wrong. The INA does not empower the Attorney General to require enforcement of federal law—either directly or as a condition of receiving Byrne JAG funding.
The district court also properly enjoined the Attorney General’s unlawful notice and access policy with respect to all jurisdictions seeking FY2017 JAG funds. Chicago’s request for a nationwide injunction fell within the court’s jurisdiction because Chicago satisfied Article III’s standing requirement for each claim and for each form of relief it sought. That is all Article III requires; once the standing threshold has been crossed, Article III imposes no additional constraint on the scope
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of the injunction a court may order. Decades of Seventh Circuit and Supreme Court precedent confirm this point.
Nor did the district court abuse its discretion by enjoining the notice and access policy in all applications. The Attorney General faces a heavy burden in attempting to overturn the injunction on this basis—“the appropriate scope of the injunction is left to the district court’s sound discretion.” Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010). And none of his arguments justifies disturbing the well-reasoned decision of the district court, because none forecloses a district court from issuing a nationwide injunction where the plaintiff seeks to facially invalidate a uniform federal policy.
ARGUMENT Chicago filed this lawsuit after the Attorney General announced a national policy of imposing two new conditions on the Byrne JAG program. Congress created the Byrne JAG program to support local priorities, but the Attorney General’s new conditions seek to override Chicago’s judgment about the importance of its Welcoming City policy, and to conscript Chicago police officers into federal immigration enforcement efforts. The district court properly enjoined the Attorney General’s new policy because it is ultra vires and violates separation of powers. No law empowers the Attorney General to impose these intrusive conditions, and indeed, the new conditions contravene Congress’s express directive that Byrne JAG funds must
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be distributed based on a single formula using population and crime statistics, and that local governments would set their policy priorities for these funds.
That the Attorney General lacks any authorization for his conditions should end the matter. The Attorney General nevertheless argues that the injunction should be limited to Chicago, so that he can impose these unlawful conditions on hundreds of other governments across the Nation. This refusal to retreat from a policy after it has been ruled unlawful is inconsistent with the rule of law in a democratic society. Moreover, the Attorney General’s primary argument—that the district court lacked jurisdiction to enjoin a nationwide policy on a nationwide basis—is meritless. The Attorney General is the defendant in this case; he adopted a single, unlawful policy, which Chicago successfully challenged. The district court plainly had the power to enjoin that policy; that other governments will also benefit from the injunction is irrelevant.
The Attorney General’s further insistence that the district court abused its discretion in protecting the integrity of a nationally administered formula grant program through a nationwide injunction also fails. This was an appropriate provisional remedy to fit the case, the parties, and the threatened harms. This court should not countenance the notion that the Attorney General can impose an unlawful and unconstitutional policy on governments that have not also filed suit, and should affirm the injunction as entered.
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I. THE ATTORNEY GENERAL’S NOTICE AND ACCESS POLICY IS ULTRA VIRES. The Attorney General makes no claim in this case to be exercising inherent
executive authority. Where that does not exist, a federal agency “literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986); see also Central United Life Ins. Co. v. Burwell, 827 F.3d 70, 73 (D.C. Cir. 2016) (“agencies may act only when and how Congress lets them”). Consistent with basic separation of powers principles, agencies’ “power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013). And when a policy would “upset the usual constitutional balance of federal and state powers,” Congress must make its intention to authorize the policy “‘unmistakably clear in the language of the statute.’” Gregory v. Ashcroft, 501 U.S. 452, 452 (1991). This need for clear authority is most essential where federal policy threatens to interfere with “the States’ police power,” Gonzales v. Oregon, 546 U.S. 243, 274 (2006), and where, as here, “an administrative interpretation” purports to “alte[r] the federal-state framework,” Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172-173 (2001).
The Attorney General’s notice and access policy implicates all these principles. Yet here, nothing in the Byrne JAG statute (or any other statute) gives the Attorney General authority to impose these conditions on grant applicants (and override local
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policy choices in the process). Because Congress did not authorize the notice and access policy, it is unlawful.
A. The Byrne JAG Statute Does Not Authorize The Notice And Access Policy.
The Attorney General seeks to attach the notice and access conditions to the Byrne JAG grant program, and so the natural place to look for authority would be the Byrne JAG statute. Yet as the district court recognized, the Attorney General “fail[s] to direct the Court to any textual authority within the Byrne JAG statute” for imposing the challenged conditions. SA13. This omission persists on appeal. The reason is obvious: The statute does no such thing. To the contrary, the text, structure, and purpose of the Byrne JAG statute preclude broad-based, discretionary policy conditions like the notice and access conditions.
First, the Byrne JAG statute provides no authority for substantive conditions. Where Congress wants to provide broad-scale, discretionary conditioning authority, it uses a discretionary grant model instead of a formula grant model. See Allen, Federal Grant Practice § 16:7 (2017) (distinguishing “[n]ondiscretionary” “block or formula programs” from “discretionary” grants, which allow agencies to “exercise judgment in selecting the grantee”); City of Philadelphia v. Sessions, No. CV 17-3894, 2017 WL 5489476, at *5 (E.D. Pa. Nov. 15, 2017) (identifying the Byrne JAG program as a mandatory “formula” grant rather than a “discretionary” grant); see also City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (“In the formula grant
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program the authorizing Act of Congress determines who the recipients are and how much money each shall receive.”). Indeed, in the larger statute that houses the Byrne JAG program, the Omnibus Crime Control and Safe Streets Act of 1968, Congress created a different grant program that expressly authorizes the Attorney General to “impose reasonable conditions on grant awards.” 42 U.S.C. § 3796gg-1(e)(3). Congress frequently uses similar language when it wishes to authorize policy conditions on a discretionary basis. E.g., id. § 10305(a)(2) (Secretary can impose conditions he “considers to be in the best interest of the Nation”); 25 U.S.C. § 1652(b) (Secretary authorized to “include such conditions as the Secretary considers necessary to effect the purpose of this subchapter”); 42 U.S.C. § 1769e(b) (similar). But such language is conspicuously absent from the Byrne JAG statute. “Congress acts intentionally and purposely in the disparate inclusion or exclusion” of statutory text. Russello v. United States, 464 U.S. 16, 23-24 (1983); see also Jama v. ICE, 543 U.S. 335, 341 (2005) (courts will not “lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply,” especially where Congress has expressly included such text “elsewhere in the same statute”). Accordingly, it is clear that Congress withheld any open-ended authority to impose substantive policy conditions on Byrne JAG grants.
Second, the claimed authority to impose broad, substantive conditions on Byrne JAG grantees directly conflicts with multiple express restrictions and instructions in the Byrne JAG statute. The Byrne JAG statute prescribes a detailed, mandatory
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funding allotment formula—commanding that the Attorney General “shall allocate” funds, 34 U.S.C. § 10156(d)(2)(A) (emphasis added), “in accordance with” a formula based on population and crime statistics, id. § 10152(a)(1); see § 10156(d)(2)(A). Unbounded conditioning authority would empower the Attorney General to use the grant as a policy tool against local governments by blocking distribution of large chunks of allotted grant funds at will. Indeed, the share for Chicago and the local amici in the district court is more than 20% of the funds committed by Congress’s formula for local governments. R.884-928. The Attorney General cannot be said to comply with the statute’s clear directive that he “shall” allocate Byrne JAG funds “in accordance with” the prescribed formula if he imposes conditions that would distribute only 80% of grant funds using that formula.
The statute also broadly guarantees local governments the opportunity to propose programs tailored to local needs in “any one” of eight expansively defined areas. 34 U.S.C. § 10152(a)(1). And the statute enforces that guarantee by requiring a rule of construction that allows state and local governments to use funds at least as flexibly as they could under the very flexible statutes governing two predecessor programs. See id. § 10152(a)(2). Rather than fulfill that guarantee, however, the Attorney General seeks to wield power to dictate local policy priorities.
And most glaringly, the Byrne JAG statute contains a very specific, limited “reserved funds” exception, allowing the Attorney General to exercise a modicum of policy discretion by “reserv[ing] not more than 5 percent” of the program’s total
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funds to combat “extraordinary increases in crime” or “mitigate significant programmatic harm,” if he affirmatively “determin[es]” that doing so is “necessary” to address one of those two important national crime-fighting objectives. 34 U.S.C. § 10157(b). The Attorney General has made neither determination here nor even claimed in litigation that he could make such a determination. And he would impose the conditions not on 5% of the funds, but on every last dollar of Byrne JAG money. Such a brazen effort to condition all Byrne JAG funds, without any predicate findings, on local governments’ accession to federal immigration enforcement priorities contradicts both limitations.
Third, Congress has shown repeatedly that it knows how to tie Byrne JAG funds to specific federal policy objectives, and it has not done so here. There are multiple statutory provisions limiting Byrne JAG funding for failure to meet specific policy goals. 34 U.S.C. § 20927(a) (reducing Byrne JAG allotments by 10% for failure to substantially comply with the Sex Offender Registration and Notification Act (“SORNA”)); id. § 30307(e)(2)(A) (requiring 5% reduction in Byrne JAG funds and other grants administered by DOJ for failure to comply with Prison Rape Elimination Act); id. § 60105(c)(2) (requiring “not more than a 10-percent reduction” in Byrne JAG funds for failure to comply with Death in Custody Reporting Act). Notably, failure to abide by each of these policies—which Congress deemed sufficiently important that it wrote them into law—results in at most a 10% reduction in Byrne JAG funding. Congress has never authorized the Attorney General to declare
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jurisdictions wholesale ineligible for their prescribed allocation on policy grounds. In fact, Congress has repeatedly considered, but never enacted, proposed legislation that would condition Byrne JAG funding on local enforcement of federal immigration policies. E.g., Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2(b)(2) (2015) (proposing removal of Byrne JAG funding); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015) (directing Attorney General to “withhold” Byrne JAG funding).
Finally, the Attorney General’s attempt to transform the Byrne JAG program into a policy cudgel is flatly inconsistent with the program’s overarching purpose. Congress enacted the Byrne JAG statute to “give State and local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). Congress intended the Byrne JAG funding to empower local governments by deferring to local policy choices, but now the Attorney General would use those funds to coerce local governments into submission. It is no wonder that he fails to address the Byrne JAG statute in this appeal.
In sum, Congress’s design for the Byrne JAG program could not be clearer. It gave the Attorney General limited discretion over matters of technical administration and relied on its own finely tuned formula to guide fund distribution. The Attorney General’s asserted conditioning authority is incompatible with the Byrne JAG statute.
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B. 34 U.S.C. § 10102 Does Not Authorize The Notice And Access Policy.
Rather than address the language of the Byrne JAG statute, the Attorney General rests his argument on 34 U.S.C. § 10102(a)(6), an obscure provision specifying the “Duties and Functions” of the Assistant Attorney General for OJP. The Attorney General’s sole argument in this appeal with respect to any possible statutory authority to impose his notice and access policy is that section 10102(a)(6) grants the Assistant Attorney General unlimited power to impose discretionary policy conditions on all grants, including the Byrne JAG grant. That argument is unsupportable as a matter of statutory text and structure.
1. The text of section 10102(a)(6) precludes the Attorney General’s reading.
The fundamental difficulty with the Attorney General’s argument is that section 10102(a)(6) is not an independent grant of any authority to anyone to impose grant conditions. Section 10102 lists six duties and corresponding powers of the Assistant Attorney General. The first five paragraphs describe largely organizational functions, ranging from “disseminat[ing] information on the conditions and progress of the criminal justice system,” 34 U.S.C. § 10102(a)(1), to liaising with various federal and local officials, id. § 10102(a)(2), (4), to coordinating the work of the offices that report to him, id. § 10102(a)(5).
The sixth paragraph, on which the Attorney General rests here, provides that the Assistant Attorney General may also “exercise such other powers and functions as
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may be vested in [him] pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6) (emphasis added). The Attorney General emphasizes the second half of that provision, beginning with the word “including,” and reads that snippet to confer affirmative authority to impose any condition on any grant. But that is no way to read a statute. The second clause of section 10102(a)(6) does not independently confer any authority at all because its meaning is grammatically and logically limited by the requirements of the first clause—which permits the Assistant Attorney General to “exercise” only whatever power is otherwise properly vested in him by statute or by the Attorney General. The Attorney General’s assertion that the second clause independently delegates unlimited conditioning authority is wrong as a matter of text for at least two reasons.
First, the word “including” has an established meaning: The grant-conditioning powers in the second clause are a part or subset of powers that “may be vested” in the Assistant Attorney General by this chapter or by delegation from the Attorney General. “To ‘include’ is to ‘contain’ or ‘comprise as part of a whole.’” Chickasaw Nation v. United States, 534 U.S. 84, 89 (2001); accord Epsilon Elecs., Inc. v. U.S. Dep’t of Treasury, Office of Foreign Assets Control, 857 F.3d 913, 922 (D.C. Cir. 2017) (“Whatever follows the word ‘including’ is a subset of whatever comes before.”). The items following the word “including” are, in other words, “illustrative” of the set of things described before it. Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 459 (7th Cir.
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2006) (“‘Including’ . . . is interpreted as a word of . . . illustrative application”). The Attorney General contends that he may exercise such powers regardless of whether they are “vested in” him by law or by delegation from the Attorney General. Sessions Br. 19; see also R.452 (“[T]he AAG’s power must include, at a minimum, the power to ‘plac[e] special conditions on all grants’ administered by OJP, regardless of whether there is ‘some independent source of statutory authority.’”). That construction would improperly rewrite “‘including’ [to] mea[n] ‘and’ or ‘as well as.’” P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 77 n.7 (1979).
Second, the first clause refers to powers (“including” those referenced in the second clause) that “may be vested in” the Assistant Attorney General “pursuant to this chapter or by delegation of the Attorney General.” This is not itself a source of authority. “May” indicates only an unconsummated possibility. See Black’s Law Dictionary (10th ed. 2014), “May” (“To be a possibility”). Thus, power must be derived from some other source of law and must actually be vested in the Assistant Attorney General before he may exercise it. In short, “any authority of the Assistant Attorney General to place special conditions on grants must flow either from the statute itself or from a delegation of power independently possessed by the Attorney General.” SA18.
The claim that Congress conveyed sweeping authority to the Assistant Attorney General (or to anyone else, for that matter) in section 10102(a)(6) also defies common
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sense and basic rules of statutory construction. Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001). And it certainly does not do so in ways that would radically alter the federal-state balance of power. See Gonzales, 546 U.S. at 274 (“principles of our federal system . . . belie the notion that Congress would use . . . an obscure grant of authority to regulate areas traditionally supervised by the States’ police power”). Here, notwithstanding Congress’s obligation to “impose . . . condition[s] on the grant of federal moneys . . . unambiguously,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981), the Attorney General argues that Congress used a minor amendment to an ancillary provision governing a sub-cabinet post to confer limitless power—wholly unmentioned in and deeply discordant with the grant statute itself—to condition and prioritize those funds at will. That view would be problematic in a statute that clearly said exactly that. And here the Attorney General rests on both a strained reading of the text of section 10102(a)(6) and an improbable theory of congressional intent.
Finally, whatever conditioning authority section 10102(a)(6) describes, it is limited to “special conditions,” and here the Attorney General does not even attempt to define the phrase “special conditions,” much less explain why the notice and access conditions he seeks to impose here are “special” within the meaning of that term. This avoidance is not surprising because “special condition” has an established
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meaning in the federal grant context, both at DOJ and across its sister agencies, and it does not encompass generally applicable policy requirements like the notice and access conditions.
Federal agencies have long imposed “special” conditions on “high-risk” grantees that have a history of performance issues like unsatisfactory program execution or financial irregularity. See City of Philadelphia, 2017 WL 5489476, at *27 (“term ‘special conditions’ . . . is a term of art for conditions intended for ‘high-risk grantees’ with difficulty adhering to existing grant requirements”); see also Federal Grant Practice § 25.4 (awarding agency “may impose ‘specific conditions,’ or ‘special conditions’ on the ‘high risk’ recipient” after assessing “the chances that an applicant will successfully execute a grant” and finding “red flags”) (citing Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.205).
Indeed, DOJ regulations promulgated in 1988 and in effect in 2005 when the “special conditions” language was added to section 10102(a)(6) detail DOJ’s approach to imposing “[s]pecial grant or subgrant conditions for ‘high risk’ grantees” consistent with longstanding practice across the federal government. 28 C.F.R. § 66.12 (in effect from Mar. 11, 1988 to Dec. 25, 2014) (elaborating requirements to be designated “high risk”); City of Philadelphia, 2017 WL 5489476, at *27 (elaborating practice of imposing “special conditions” across agencies). The most natural reading of Congress’s intention in adding the “special conditions” language in 2005 is to indicate
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that such assessments of “high-risk” grantees are the kind of authority Congress envisioned the Attorney General “vest[ing] in the Assistant Attorney General . . . by delegation.” 34 U.S.C. § 10102(a)(6).
The Attorney General’s passing mention of other conditions appearing in past Byrne JAG award documents, Sessions Br. 14, lends no support to the Attorney General’s reading of section 10102(a)(6). In addition to the condition regarding 8 U.S.C. § 1373 (which Chicago has also challenged but is not at issue here), the conditions the Attorney General lists concern information sharing, privacy protection, protection of human subjects in federally funded research, a list of prohibited and controlled expenditures, and training requirements for task force members funded with Byrne JAG funds. The Attorney General nowhere explains why these other conditions are relevant to interpreting section 10102(a)(6), and they bear no resemblance to the notice and access conditions.6
2. Statutory context confirms that the Attorney General’s reliance on section 10102(a)(6) is misplaced.
Rather than address the limiting language in section 10102(a)(6)’s first clause, the plain meaning of “including,” or the definition of the term “special conditions,” the Attorney General principally argues that Congress must have intended the phrases “placing special conditions” and “determining priority purposes” to create an
6 Further, DOJ itself appears to doubt whether all the conditions it calls “special conditions” in the Byrne JAG context are in fact “special”—labeling many of those same conditions as “General Conditions for OJP Awards” on the OJP website. R.878883 (emphasis added).
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independent conditioning power because otherwise those references would be superfluous. That is wrong. As we explain, items following the word “including” are, by definition, “illustrative” of the set of things described before it. Gaffney, 451 F.3d at 459 (“‘Including’ . . . is interpreted as a word of . . . illustrative application”). Reading “including” to indicate illustration—rather than expansion—of the powers that “may be vested” in the Assistant Attorney General explains the inclusion of the “special conditions” language in the provision. Statutory language used for illustrative purposes is not superfluous.
By contrast, it is the Attorney General’s reading of section 10102(a)(6) that would generate statutory superfluity. His reading renders numerous specific grants of conditioning authority in the Byrne JAG statute itself superfluous, such as the authority to condition grants on submission of certain “data, records, and information,” 34 U.S.C. § 10153(A)(4), and on compliance with a mandatory “program assessment component,” id. § 10152(e). His reading is also directly contrary to the Byrne JAG statute’s “Reserved Funds” provision, which authorizes conditioning no more than 5% of total JAG funds on an applicant’s willingness to pursue specific programmatic objectives. Id. § 10157(b). And it would render nonsensical Congress’s specific statutory instructions to incrementally (but only incrementally) reduce Byrne JAG funds for jurisdictions that fail to comply with the requirements of SORNA, the Prison Rape Elimination Act, and the Death in Custody Reporting Act. See supra at 22-23.
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And the damage inflicted by the Attorney General’s construction of section 10102(a)(6) would reach far beyond the Byrne JAG program. The Attorney General maintains that his powers under section 10102(a)(6) extend to all grants. OJP oversees dozens of grant programs totaling nearly $2 billion, R.950-959, and each of those programs has specific constraints and requirements. E.g., 34 U.S.C. §§ 1033210334 (specific criteria for grants for closed-circuit video testimony of children in criminal child-abuse proceedings); 34 U.S.C. §§ 10591-10593 (specific criteria for grants for certain substance abuse treatment programs). The Attorney General’s reading of section 10102(a)(6)—which would permit him to impose any policy conditions on any of these funds regardless of the language in the actual grant program statutes—would nullify Congress’s stated requirements for imposing policy conditions on numerous grant programs.
The Attorney General’s argument that section 10102(a)(6) grants him authority simply “to add conditions in addition to those established” by statute, Sessions Br. 19, is also wrong. As already explained, the command in the Byrne JAG statute’s “Reserved Funds” provision to redirect “not more than” 5% of the Byrne JAG funds, 34 U.S.C. § 10157(b), forecloses the power to add conditions on 100% of funds. Other grant authorizations within the same chapter likewise use language that sharply constrains the Attorney General’s discretion. Subchapter XXXI, for instance, mandates that “[t]he Attorney General shall make grants” for adult offender reentry programs and provides that he “shall give priority to grant applications” meeting
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certain conditions set forth in the statute. Id. § 10631(f). This language precludes reading section 10102 to also permit the Attorney General to tinker with the grant criteria in any way he pleases. “The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive.” National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007). And as the district court noted, SA14-15, the Director of the Bureau of Justice Assistance has authority to “awar[d] and allocat[e] funds” in the discretionary grants under his purview “on terms and conditions determined by the Director to be consistent with part B of subchapter V of this chapter.” 34 U.S.C. § 10142(2). Congress would not have vested the Director with authority to set the “terms and conditions” for those grants if it also intended the Assistant Attorney General to add other terms or conditions.
And there are other problems with the Attorney General’s reading beyond its treatment of the word “including” and its unsupported interpretation of section 10102(a)(6) as an independent grant of general authority to condition funds. However section 10102(a)(6) is read, the more specific provisions of the individual grant programs must still be given effect. It is a “commonplace [rule] of statutory construction that the specific governs the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). “That is particularly true, where . . . Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645
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(2012). In short, the specific grants of authority in the Byrne JAG statute and its sister grant programs should be given effect, rather than swallowed whole by the Attorney General’s reading of section 10102.
Rather than addressing these critical textual and structural flaws in his construction of section 10102, the Attorney General quibbles with marginal issues. For example, the Attorney General criticizes the district court’s suggestion that section 10102(a)(6) may not apply to the Byrne JAG grant at all. Sessions Br. 18. Those criticisms are incorrect, but more important, they do not go to the heart of the matter: Whether or not section 10102 applies to the Byrne JAG program (and the district court assumed that it did apply), that provision still does not confer any standalone power to impose new policy conditions on federal grants. And in any event, the district court’s skepticism about section 10102’s scope was well-grounded. Section 10102 appears in a subchapter that establishes OJP and confers limited authority on its head, the Assistant Attorney General. As the district court observed, there is “no textual reference that applies [that subchapter] to the rest of the chapter or specifically the Byrne JAG program,” which includes grants administered in the first instance by the Bureau of Justice Assistance rather than OJP. SA14. Nothing in the text or structure of the statute supports the conclusion that in referring to the Assistant Attorney General’s limited authority over grants within his direct control, section 10102(a)(6) also granted authority over all grants in chapter 101.
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In another tangent, the Attorney General attempts to respond to the district court’s conclusion that his reading of section 10102(a)(6) would render superfluous Congress’s express grant of authority to impose “reasonable conditions” on grants to combat violence against women authorized by the Violence Against Women Act (“VAWA”), 34 U.S.C. § 10446(e)(3), because that provision also appears in chapter 101. SA16. The Attorney General contends that this does not matter because OJP does not administer the VAWA grant program. Sessions Br. 20. But given the Attorney General’s insistence that the “including” clause is not constrained by the surrounding text in section 10102(a)(6) and thus empowers him to impose any condition on any grant in the same statutory chapter, it plainly does not matter whether OJP or some other office administers VAWA grants.
In sum, the only federal statute that the Attorney General cites as authorizing his new conditions provides him with no such authority—which is why the district court correctly enjoined them as ultra vires.
C. Neither The Attorney General’s Policy Priorities, Nor The Structure Of Immigration Law, Authorizes The Notice And Access Policy.
Ultimately, the Attorney General suggests that he does not need any statutory authorization to impose his notice and access conditions. He contends that the requirement that authority to impose conditions on formula grant be “expressly established by statute” is merely the district court’s “theory.” Sessions Br. 17. That is a remarkable departure from bedrock principles of agency authority—and particularly
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jarring coming from the Nation’s top law enforcement officer, who one would expect to be especially committed to the rule of law. The Attorney General does not claim that the Constitution grants the Executive inherent power to impose the notice and access conditions. And it is fundamental that outside of such constitutional powers, an agency “has no power to act . . . unless and until Congress confers power upon it.” Louisana, 476 U.S. at 374; accord Wabash Valley Power Ass’n v. Rural Electrification Admin., 988 F.2d 1480, 1486 (7th Cir. 1993) (same); Marquette Cement Mfg. Co. v. FTC, 147 F.2d 589, 594 (7th Cir. 1945) (“[Agencies] are the creatures of Congress and it is not within the province of courts either to emasculate or enlarge the powers which it has conferred.”).
There is no exception to that basic rule for what the Attorney General claims are important policies. Sessions Br. 17 (suggesting that the conditions are authorized because Attorney General has identified “cooperation in immigration enforcement” as “a federal priority”). Where “Congress prescribes the form in which an agency”— there, the Department of Transportation—“may exercise its authority,” courts may not “elevate the goals of an agency’s action, however reasonable, over that prescribed form.” Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1364 (D.C. Cir. 1990); see also Pennhurst, 451 U.S. at 17 (where Congress’s proscribed form is conditions on spending grants, authority to impose those conditions must be “unambiguou[s]”).
It merits note, moreover, that the Attorney General relies on policy descriptions riddled with factual inaccuracies and overstatements. For instance, the
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Attorney General’s claim that his notice and access policy targets “criminal aliens,” Sessions Br. 4, is belied by the text of the conditions, which remarkably does not even limit its terms to “aliens,” but instead applies to all individuals who federal agents “believ[e] . . . to be” “aliens,” whether or not they are and whether or not that individual has been charged or convicted of a crime. App.62-63 (conditions apply to “individuals who are (or are believed by such agents to be) aliens”).
And the facts easily refute the Attorney General’s suggestion that the challenged policy is needed to enforce immigration law against “criminal aliens” in Chicago. As the district court in Philadelphia explained in a parallel challenge, the term “criminal aliens” means non-citizens “who have been convicted of serious crimes, or have reentered the United States after being deported” and is a “category [that] represents a fairly small percentage of the total number of non-citizens.” City of Philadelphia, 2017 WL 5489476, at *3. That label is thus grossly inapt when applied to all individuals held briefly in Chicago’s “lock-up” facilities—who generally have not even been charged with, let alone convicted of, any crime. R.50-51, R.182. And contrary to the Attorney General’s suggestions, Chicago’s WCO expressly permits cooperation with immigration authorities regarding individuals who have a history of serious crimes or are identified as known gang members. R.244-245 (§ 2-173-042).
Similarly misguided is the Attorney General’s contention that his policy is designed to prevent jurisdictions from “thwart[ing] federal law enforcement.” Sessions Br. 12. The Constitution prohibits local government officials from being
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pressed into the enforcement of federal laws—immigration or otherwise. Printz v. United States, 521 U.S. 898, 919-923 (1997). Declining to voluntarily assist federal law enforcement is not “thwart[ing]” it; it is hewing to the constitutional design by using local resources to address local needs, while leaving to the federal government the choice to spend federal resources to address federal needs. Id. Policy objectives, much less these spurious ones, are no substitute for actual statutory authorization, which is lacking here.
Nor can the Attorney General inflect his policy goals with legal authority by invoking the “structure” of, and “implicit premise[s]” in, the INA. Sessions Br. 11, 16. The Attorney General contends that the “structure of the Immigration and Nationality Act” “contemplates” a “cooperative law enforcement framework,” in which state and local governments voluntarily respond to requests for release dates and allow federal officials access to criminal aliens, as the notice and access policy would require. Id. at 16. But the cited INA provisions refer to duties of federal officers only; they impose no legal obligations on state or local governments nor specify any mechanism for them to assist in federal immigration enforcement, much less clearly authorize the grant process for Byrne JAG funds to secure that assistance. E.g., 8 U.S.C. § 1226(c)(1) (requiring federal agents to take certain criminal aliens into custody); id. § 1231(a)(1)(B) (requiring federal agents to remove aliens subject to a
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removal order within 90 days).7 To be sure, it may be easier to take certain noncitizens into custody or remove them quickly if state and local governments provide voluntary assistance. But that does not allow the Attorney General to force such assistance through conditions on a grant, absent a statute creating such power.
* * * The Attorney General’s final objection—that the district court improperly invested its holding with “constitutional significance” where the Attorney General at most made an “error in grant administration”—is deaf to the significant constitutional stakes of the Attorney General’s actions. As Chicago has explained throughout this litigation, separation of powers and principles of federalism are the twin pillars of our constitutional order; they ensure that the Executive may neither arrogate legislative power to himself, nor use such ill-gotten power to improperly curtail local autonomy and self-government. These protections thus provide “a double security . . . to the rights of the people.” Federalist No. 51 (Madison). The Attorney General’s invention of notice and access conditions without statutory authorization threatens both these principles and violates principle after principle used to guide proper statutory construction in this sensitive area. See, e.g., Gregory, 501 U.S. at 461 (insisting on a “clear statement” ensures that the federal government does not overreach in 7 In contrast, a different provision of the INA, which the Attorney General does not mention, elaborates specific ways in which state and local governments can assist federal immigration enforcement and precisely how that voluntary cooperation should be obtained and managed, 8 U.S.C. § 1357(g), indicating that when Congress actually “contemplates” cooperation, it establishes detailed legal regimes to facilitate it.
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“traditionally sensitive areas” of local concern and so alter “the federal balance”); Pennhurst, 451 U.S. at 18 (courts must “carefully inquire” whether Congress “unambiguously” “imposed an obligation” on local government “as a condition of receiving federal moneys”). It is not mere “error” for the official tasked with enforcing the Nation’s laws to claim authority to intrude in an area of intimate local concern regardless of whether Congress authorized him to do so. The district court properly enjoined the Attorney General’s ultra vires policy, and this court should affirm. II. THE DISTRICT COURT PROPERLY ENJOINED THE
ATTORNEY GENERAL’S UNLAWFUL NOTICE AND ACCESS POLICY ACROSS-THE-BOARD. The Attorney General’s challenge to the scope of the district court’s injunction fares no better than his challenge to the district court’s handling of the merits. Having properly determined that the Attorney General’s uniform, national policy is unlawful and unconstitutional, the district court had the power under Article III to enjoin that policy in full, rather than permit the Attorney General to continue to foist it on every jurisdiction in the country other than Chicago. And the court acted well within its ample discretion in choosing to exercise that broad and flexible power given the nature of the case, the parties, and the harm before it.
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A. Chicago Has Standing To Seek An Injunction That Benefits Other Jurisdictions Harmed By The Same Unlawful And Unconstitutional Policy That Harms Chicago.
Federal courts possess “the judicial Power of the United States,” U.S. Const. art. III, § 1, which includes the “broad power to restrain acts” by injunction, Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 504 (7th Cir. 2008) (quoting NLRB v. Express Pub’g Co., 312 U.S. 426, 435-437 (1941)). So long as a live “case” or “controversy” exists, U.S. Const. art. III, § 2, this injunctive power extends fully to each of the “parties” properly before the court, see Fed. R. Civ. P. 65(d). To satisfy Article III’s “case” or “controversy” requirement, a plaintiff must establish standing for each claim and for each particular form of relief sought (be it prospective or retrospective). DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”); Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (plaintiff “bears the burden of showing that he has standing for each type of relief sought”). But once that threshold obligation is satisfied, Article III imposes no additional constraint at the remedy phase of a case on the scope of the injunction that a court may order. Rather, “the nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation.” Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995); accord Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“the scope of injunctive relief is dictated by the extent of the violation established”); Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997) (same).
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These principles readily establish that the district court possessed “judicial Power” under Article III to issue the injunction it entered in this case. The Attorney General does not contest that Chicago has Article III standing to assert the claim that his policy of imposing notice and access conditions on Byrne JAG grantees is unlawful. Nor does he dispute Chicago’s standing to seek relief in the form of an injunction against that policy. And for good reason. The “irreducible constitutional minimum” of standing requires only that a plaintiff “(1) suffer an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). And here, Chicago indisputably suffers an ongoing and imminent harm from the Attorney General’s policy that would be redressed by an injunction setting aside that policy. A live controversy over the Attorney General’s policy therefore exists, giving the district court the power to adjudicate the violation— imposition of conditions that “violate the separation of powers doctrine and are ultra vires,” SA19—and to tailor an injunction to remedy that violation. And that is exactly what the district court did here: It enjoined the Attorney General from carrying out the precise policy that it had found unlawful.
Given these principles, the Attorney General’s argument that federal courts exceed their Article III “judicial Power” when they enjoin a single law, regulation, or uniform administrative policy in full, rather than issuing an injunction limited to the plaintiff, Sessions Br. 21-25, plainly fails.
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The Attorney General’s new rule would upend the well-settled judicial authority to invalidate unconstitutional laws on their face, a practice that almost always reaches beyond the plaintiff to benefit individuals not before the court. E.g. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2307 (2016) (“[I]f the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is ‘proper.’”); Obergefell v. Hodges, 135 S. Ct. 2584, 26042605 (2015) (affirming injunction restraining state prohibitions on same-sex marriage on basis of claims brought by individual same-sex couples); Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971) (affirming invalidation on due-process grounds of Wisconsin statute that required retail liquor outlets to post lists of individuals to whom liquor could not be sold, in suit brought by single individual whose name appeared on list); Fields v. Smith, 653 F.3d 550, 559 (7th Cir. 2011) (affirming injunction against enforcement of Wisconsin statute on the basis of Eighth Amendment challenge brought by three inmates); Horina v. City of Granite City, Ill., 538 F.3d 624, 636 (7th Cir. 2008) (affirming facial invalidation of ordinance on First Amendment grounds in suit by single individual); see also, e.g., Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) (enjoining gun law in case brought by individuals denied gun licenses).
And the Attorney General’s rule would also abrogate the traditional power of the courts to “hold unlawful and set aside” agency action, 5 U.S.C. § 706(2), thus rendering unconstitutional under Article III the “ordinary result” when a court finds agency action unlawful: “that the rules are vacated—not that their application to the
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individual petitioners is proscribed.” Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see also, e.g., Texas v. United States, 809 F.3d 134, 187-188 & n.211 (5th Cir. 2015), aff’d by equally divided Court, 136 S. Ct. 2271 (2016) (affirming nationwide injunction against federal immigration policy); Owner-Operator Ind. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 589 (7th Cir. 2011) (vacating truck monitoring rule in suit by three drivers and trade association); Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (enjoining federal statute and regulation in facial challenge by three taxpayers).
Indeed, just this year the Supreme Court left in place portions of a nationwide injunction against a uniform federal administrative policy in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) (IRAP II), over express objections of dissenting Justices “mak[ing] the exact argument the Attorney General advances here,” App.107. See also 7th Cir. Dkt. 8, at 18 (Attorney General agreeing that IRAP II dissenters “sided with the government”). While narrowing the injunction that had been issued by lower courts against the travel ban Executive Order, the Court upheld the injunction “with respect to parties similarly situated to [the individual plaintiffs]” who had brought the case. IRAP II, 137 S. Ct. at 2088. And it did so even in the face of the dissent’s express concern that “a court’s role is ‘to provide relief’ only ‘to claimants.’” Id. at 2090. Plainly, a majority of the Court rejected that jurisdictional argument. Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (“‘the first
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and fundamental question is that of jurisdiction,” which “the court is bound to ask and answer for itself, even when not otherwise suggested’”).
The Attorney General contends this longstanding judicial practice should be ignored because these cases “did not address the issue of Article III standing” and “‘the existence of unaddressed jurisdictional defects has no precedential effect.’” Sessions Br. 25. That principle does not apply where there is a “decades-long understanding prevailing on this issue.” Hibbs v. Winn, 542 U.S. 88, 111-112 (2004) (finding it significant that “[i]n a procession of cases not rationally distinguishable from this one” no court had ever “order[ed] dismissal of the action for want to jurisdiction”). This court should not “disregard the implications of an exercise of judicial authority assumed to be proper for [decades].” Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962); see also Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 88 (1809) (Marshall, C.J.) (where court “repeatedly . . . decided [cases]” of a particular nature “without feeling a doubt respecting its jurisdiction,” those cases “have much weight”). And that is especially true where, as here, the prior cases are “adjudications of great moment discerning no [jurisdictional] barrier.” Hibbs, 542 U.S. at 112 n.13. Such cases “cannot be written off as reflecting nothing more than unexamined custom or unthinking habit,” id.—particularly given the Court’s “fundamental” “obligation to assure [itself]’ of litigants’ standing under Article III,” sua sponte if necessary. DaimlerChrysler Corp., 547 U.S. at 340 (internal quotation marks omitted).
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In the face of this precedent, the Attorney General leans on quotes plucked out
of context from the Supreme Court’s general standing and mootness canon. But
none of the cases the Attorney General cites addressed the issue here—a district
court’s broad remedial power to grant injunctive relief on a claim that the plaintiff indisputably has standing to assert.8 And the maxim that the Attorney General
highlights from those cases—that “standing is not dispensed in gross”—is fully
vindicated by the requirements that a plaintiff establish standing for each claim and for
each form of relief (such as damages, an injunction, declaratory relief, or civil penalties). See Summers, 555 U.S. at 493.9 As we explained above, and longstanding
8 Thus, for example, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010), and Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), decided only that plaintiffs lacked standing to advance particular claims or to seek a particular form of relief—but did not address the scope of relief in an otherwise live controversy. The same is true of the mootness cases the Attorney General cites. See Alvarez v. Smith, 558 U.S. 87, 92 (2009) (plaintiff had no live claim because any harm caused to him by the challenged practice had already been remedied); Summers, 555 U.S. at 494 (same). 9 See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (“plaintiff must demonstrate standing separately for each form of relief sought” (emphasis added)); Summers, 555 U.S. at 493 (plaintiff “bears the burden of showing that he has standing for each type of relief sought” (emphasis added)); Warth
v. Seldin, 422 U.S. 490, 500 (1975) (standing “often turns on the nature . . . of the claim
asserted” (emphasis added)); City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (affirming plaintiff’s standing to seek damages, but not injunctive relief); DaimlerChrysler Corp., 547 U.S. at 352 (“a plaintiff must demonstrate standing for each claim he seeks to press” (emphasis added)).
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judicial practice reflects, that maxim does not limit the scope of relief that a district court may order, once it has resolved the merits of such a claim.10
The Attorney General also relies heavily on two cases from this court, but both are inapposite. They involved plaintiffs who had effectively sought to assert additional, distinct claims beyond the individual claims they had standing to assert. McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997), involved fact-specific due process challenges to a demolition ordinance that could be resolved only on an asapplied basis because plaintiffs’ claims, even if meritorious, would not have proven the ordinance unlawful as applied to other plaintiffs in different circumstances. Id. at 557-559 (describing claims relating to insufficient process, fees charged to indigent property owners, and risk of erroneous demolition). In that context, where, as a practical matter, plaintiffs sought adjudication of claims that depended on facts unique to other parties, plaintiffs “lack[ed] standing to seek—and the district court therefore lack[ed] authority to grant—relief that benefit[ed] third parties” not before the court. Id. at 555.
Likewise, in Scherr v. Marriott International, Inc., 703 F.3d 1069 (7th Cir. 2013), this court analyzed the plaintiff’s case as involving distinct claims against fifty-seven separate hotels, each of which had installed the same spring hinge that had injured her when she stayed at one of the hotels. E.g., id. at 1073 (“Scherr has standing to bring 10 For purposes of standing, it is immaterial whether the violation is constitutional or statutory; as the Attorney General admits, Sessions Br. 24-25, the rules of standing are the same for each.
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her suit against the Overland Park Courtyard Marriott but not the other hotels”). Because the plaintiff had established concrete plans to stay at only one hotel, she lacked standing to pursue any claim against the other fifty-six. See id. at 1075. McKenzie and Scherr thus stand for nothing more than the unremarkable proposition that standing must be established for each separate claim. And they cast no doubt on the power of courts adjudicating a single claim against a uniform policy to enjoin that policy in full when there is “no reason to think that . . . the statutory authority given to [the defendant] would differ in another jurisdiction.” SA 41. The Attorney General’s jurisdictional argument, not even raised in opposition to the motion for preliminary injunction, should be rejected.
B. The District Court Acted Within Its Discretion In Enjoining The New Conditions.
Because there is no Article III problem, the Attorney General is left with a single argument against the injunction: that the district court abused its discretion in entering an injunction that recognized the facial invalidity of the notice and access policy by enjoining it across-the-board. Sessions Br. 25-26. A court has substantial latitude to “mold each decree to the necessities of the particular case and to remedy the consequences of past constitutional violations,” Gautreaux v. Chicago Housing Auth., 690 F.2d 601, 609 (7th Cir. 1982), for “breadth and flexibility are inherent in equitable remedies,” Preston v. Thompson, 589 F.2d 300, 303 (7th Cir. 1978) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). Reflecting this, “the
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appropriate scope of the injunction is left to the district court’s sound discretion.” Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 307 (7th Cir. 2010); see also, e.g., H-D Mich., LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 843 (7th Cir. 2012).
The district court did not abuse that discretion here. Because this case involves a facial challenge to a single, nationally integrated federal policy, imposed through a formula grant program under which each recipient’s funding award is affected by the awards made to other jurisdictions, the district court held that “there is no reason to think that the legal issues present in this case,” or the relevant facts, “would differ in another jurisdiction.” SA41. This holding flows directly from the long line of cases we cite upholding the federal courts’ ability to invalidate a facially unlawful statute or policy. The district court’s order was thus the ordinary practice: When a court “strike[s] down a statute, rule, or ordinance on the ground that it is constitutionally offensive,” that relief “generally will benefit not only the claimant but all other persons subject to the practice or the rule under attack.” Wright & Miller, Federal Practice & Procedure § 1771 (3d ed. 2017). And indeed, this court has affirmed a nationwide injunction against a federal department on these very grounds. In Decker, this court explained that, despite being brought by individual plaintiffs in Milwaukee, the case had “evolved . . . into one challenging the facial constitutionality of [a] statute and of the Department of Labor’s [implementing] regulation,” making a nationwide injunction proper. 661 F.2d at 618; see also Dayton Bd. of Educ. v. Brinkman, 433 U.S.
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406, 420 (1977) (“[I]f there has been a systemwide impact . . . there [may] be a systemwide remedy.”).
The Attorney General’s own position before this court offers yet another reason for a nationwide injunction. His motion seeking a stay of the district court’s injunction announced that, if a stay were granted, he would impose the unlawful notice and access conditions on the nearly 1,000 other jurisdictions that have applied for Byrne JAG funds, including jurisdictions participating as amici in this case. 7th Cir. Dkt. 8, at 2; see also R.1080 (claiming that a stay would “preserv[e] the Department’s ability to pursue imposing the notice and access conditions for 2017 Byrne JAG grants”). Broad injunctions are particularly proper where “a proclivity for unlawful conduct has been shown.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (cited in Russia Media Grp., 598 F.3d at 307).
None of the cases the Attorney General cites requires vacatur of the district court’s well-supported injunction. He first points to the general principle that injunctions should “be no more burdensome to the defendant than necessary to provide complete relief.” Sessions Br. 25. But that principle gives way where, as here, the plaintiff has a successful claim that the defendant’s action is facially unlawful. “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano, 442 U.S. at 702. The Attorney General also has little recourse to arguments that the preliminary injunction significantly burdens him. Such an order, as the Attorney General acknowledges, is
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intended to preserve the status quo. Sessions Br. 26. An order that “merely return[s]
the nation temporarily to the position it has occupied for many previous years” by
restraining the federal government from implementing a nationwide policy
accomplishes precisely that goal. Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017), cert. denied, 2017 WL 3224674 (U.S. Nov. 13, 2017) (No. 17-5424).11
The Attorney General then selectively cites out-of-circuit cases to suggest that
the general practice in both the Fourth and Ninth Circuits is to vacate injunctions to
the extent they grant relief to parties not before the court. Sessions Br. 25-26 (citing
Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001), and Los Angeles
Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011)). That is incorrect.
Elsewhere, the Ninth Circuit has recognized that “an injunction is not necessarily
made over-broad by extending benefit to persons other than prevailing parties in the
lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing
parties the relief to which they are entitled,” Bresgal v. Brock, 843 F.2d 1163, 1170 (9th
Cir. 1987), and has applied that principle to uphold a nationwide injunction where
11 Nor is class status required in this case, as the Attorney General suggests. Sessions Br. 26. Class status would be required to bind non-parties to the litigation, but it is not required to enjoin a defendant already before the court from taking unlawful action. See Fed. R. Civ. P. 65(d); cf. Fed. R. Civ. P. 71. Indeed, pre-1966 decisions granting blanket relief from an unlawful government policy were the model for Rule 26(b)(2), which provides for mandatory class status in cases seeking injunctive relief. E.g., Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963) (“whether or not appellants may properly represent all Negroes similarly situated [as a formal class action], the decree to which they are entitled is the same”) (cited in Fed. R. Civ. P. 23, Advisory Comm. Notes to 1966 Amendments).
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relief limited to the plaintiffs “would not cure the statutory violations identified,” Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017), vacated as moot on appeal, 874 F.3d 1112 (9th Cir. 2017); see also Washington v. Trump, 847 F.3d 1151 (affirming district court’s entry of nationwide injunction against Executive Order 13769). Thus, the Ninth Circuit has recognized that, when a policy is unlawful in all its applications, it is within a court’s discretion to enjoin it completely.
Likewise, the Fourth Circuit recently recognized that a district court, in its discretion, may enter a nationwide injunction against a federal policy if doing so is “necessary to cure the constitutional deficiency, which would endure in all [the policy’s] applications.” Int’l Refugee Assistance Project v. Trump (“IRAP I”), 857 F.3d 554, 605 (4th Cir. 2017), vacated as moot on appeal, 138 S. Ct. 353 (2017) (mem.).12 The Attorney General attempts to distinguish this case, Sessions Br. 28-29, but his attempts are unavailing. While the Fourth Circuit did note that the IRAP I plaintiffs were “dispersed throughout the United States,” it relied on this point only to establish that “challenged conduct caused irreparable harm in myriad jurisdictions across the country.” 857 F.3d at 605. The same is true here: Jurisdictions from across the country rushed to participate in this lawsuit and express their support for a nationwide preliminary injunction. Those jurisdictions ranged from Cook County and other sub-
12 The order vacating IRAP I as moot “express[ed] no view on the merits,” 138 S. Ct. at 353, and the Fourth Circuit’s decision thus “still ‘constitutes persuasive authority.’” In re Motors Liquidation Co., 829 F.3d 135, 156 n.23 (2d Cir. 2016), cert. denied, 137 S. Ct. 1813 (2017).
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grantees of Byrne JAG funds Chicago receives, to thousands of local governments that participated either directly as amici or indirectly through national organizations of which they are members. R.592, R.645, R.767. And the Attorney General’s claim that “this case involves the administration of a federal grant program, rather than the application of immigration law to foreign nationals,” Sessions Br. 28, is belied by his own brief, which defends the policy as part of the Administration’s immigration enforcement program, id. at 11, 15, 17. Finally, as in IRAP I, allowing the challenged violation to continue against non-plaintiffs would have broader effects, given the structure of Byrne JAG statute’s allocation formula, by which all applicants draw funds from a single pool. See supra at 4-5 (describing allocation procedure).
At bottom, the Attorney General’s complaint seems to be that that the nationwide injunction is unfair because it does “not foreclose any other grant applicant from bringing suit” while at the same time it “foreclose[s] the United States from enforcing the grant conditions regardless of whether it would be able to prevail in other courts.” Sessions Br. 27-28. There is no unfairness here. The Attorney General is a party to this litigation, and he is foreclosed from enforcing the grant conditions because they are unlawful. Courts have broad power to remedy violations of the law by enjoining a party before them, and that is all the court did here—it ordered the Attorney General to desist from unlawful conduct. At the same time, non-parties are not foreclosed precisely because they are non-parties. As in numerous other cases in which a court has correctly determined that a unitary administrative
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policy is facially invalid, the district court here did not abuse its discretion in preliminarily enjoining the Attorney General’s notice and access conditions acrossthe-board.
CONCLUSION The judgment of the district court should be affirmed.

Respectfully submitted,

JAMIE S. GORELICK DAVID W. OGDEN ARI HOLTZBLATT ARI SAVITZKY MOLLY M. JENNINGS TIFFANY WRIGHT BRIDGET FAHEY* WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE ADRIEL I. CEPEDA DERIEUX WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar.
December 28, 2017

/s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago BENNA RUTH SOLOMON Deputy Corporation Counsel MYRIAM ZRECNY KASPER ANDREW W. WORSECK Chief Assistant Corporation Counsel JUSTIN A. HOUPPERT SCOTT D. SPEARS Assistant Corporation Counsel 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-7764
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON LAURA KLEINMAN TAL CHAIKEN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700

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STATUTORY ADDENDUM

ADDENDUM TABLE OF CONTENTS Page
34 U.S.C. § 10151 .......................................................................................................... Add. 1 34 U.S.C. § 10152 ..........................................................................................................Add. 2 34 U.S.C. § 10153 .......................................................................................................... Add. 4 34 U.S.C. § 10154 .......................................................................................................... Add. 7 34 U.S.C. § 10155 .......................................................................................................... Add. 8 34 U.S.C. § 10156 .......................................................................................................... Add. 9 34 U.S.C. § 10157 ........................................................................................................Add. 14 34 U.S.C. § 10158 ........................................................................................................Add. 15 34 U.S.C. § 10102 ........................................................................................................Add. 16

34 U.S.C. § 10151 (a) In general
The grant program established under this part shall be known as the “Edward Byrne Memorial Justice Assistance Grant Program”. (b) References to former programs (1) Any reference in a law, regulation, document, paper, or other record of the United States to the Edward Byrne Memorial State and Local Law Enforcement Assistance Programs, or to the Local Government Law Enforcement Block Grants program, shall be deemed to be a reference to the grant program referred to in subsection (a). (2) Any reference in a law, regulation, document, paper, or other record of the United States to section 506 of this Act as such section was in effect on the date of the enactment of the Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009, shall be deemed to be a reference to section 505(a) of this Act as amended by the Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009.
Add. 1

34 U.S.C. § 10152
(a) Grants authorized (1) In general From amounts made available to carry out this part, the Attorney General may, in accordance with the formula established under section 3755 of this title, make grants to States and units of local government, for use by the State or unit of local government to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following programs: (A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams. (2) Rule of construction Paragraph (1) shall be construed to ensure that a grant under that paragraph may be used for any purpose for which a grant was authorized to be used under either or both of the programs specified in section 3750(b) of this title, as those programs were in effect immediately before January 5, 2006.
(b) Contracts and subawards A State or unit of local government may, in using a grant under this part for purposes authorized by subsection (a) of this section, use all or a portion of that grant to contract with or make one or more subawards to one or more--
(1) neighborhood or community-based organizations that are private and nonprofit; or (2) units of local government. (3) Repealed. Pub.L. 109-271, § 8(h)(3), Aug. 12, 2006, 120 Stat. 767
Add. 2

(c) Program assessment component; waiver
(1) Each program funded under this part shall contain a program assessment component, developed pursuant to guidelines established by the Attorney General, in coordination with the National Institute of Justice.
(2) The Attorney General may waive the requirement of paragraph (1) with respect to a program if, in the opinion of the Attorney General, the program is not of sufficient size to justify a full program assessment.
(d) Prohibited uses
Notwithstanding any other provision of this Act, no funds provided under this part may be used, directly or indirectly, to provide any of the following matters:
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order--
(A) vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters);
(B) luxury items;
(C) real estate;
(D) construction projects (other than penal or correctional institutions); or
(E) any similar matters.
(e) Administrative costs
Not more than 10 percent of a grant made under this part may be used for costs incurred to administer such grant.
(f) Period
The period of a grant made under this part shall be four years, except that renewals and extensions beyond that period may be granted at the discretion of the Attorney General.
(g) Rule of construction
Subparagraph (d)(1) shall not be construed to prohibit the use, directly or indirectly, of funds provided under this part to provide security at a public event, such as a political convention or major sports event, so long as such security is provided under applicable laws and procedures.
Add. 3

34 U.S.C. § 10153
(a) In general
To request a grant under this part, the chief executive officer of a State or unit 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 year, in such form as the Attorney General may require. Such application shall include the following:
(1) A certification that Federal funds made available under this part will not be used to supplant State or local funds, but will be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities.
(2) An assurance that, not fewer than 30 days before the application (or any amendment to the application) was submitted to the Attorney General, the application (or amendment) was submitted for review to the governing body of the State or unit of local government (or to an organization designated by that governing body).
(3) An assurance that, before the application (or any amendment to the application) was submitted to the Attorney General--
(A) the application (or amendment) was made public; and
(B) an opportunity to comment on the application (or amendment) was provided to citizens and to neighborhood or community-based organizations, to the extent applicable law or established procedure makes such an opportunity available.
(4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.
(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, if qualified under regulations promulgated by the Attorney General), that--
(A) the programs to be funded by the grant meet all the requirements of this part;
(B) all the information contained in the application is correct;
(C) there has been appropriate coordination with affected agencies; and
Add. 4

(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
(6) A comprehensive Statewide plan detailing how grants received under this section will be used to improve the administration of the criminal justice system, which shall--
(A) be designed in consultation with local governments, and representatives of all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, corrections personnel, and providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services;
(B) include a description of how the State will allocate funding within and among each of the uses described in subparagraphs (A) through (G) of section 3751(a)(1) of this title;
(C) describe the process used by the State for gathering evidence-based data and developing and using evidence-based and evidence-gathering approaches in support of funding decisions;
(D) describe the barriers at the State and local level for accessing data and implementing evidence-based approaches to preventing and reducing crime and recidivism; and
(E) be updated every 5 years, with annual progress reports that--
(i) address changing circumstances in the State, if any;
(ii) describe how the State plans to adjust funding within and among each of the uses described in subparagraphs (A) through (G) of section 3751(a)(1) of this title;
(iii) provide an ongoing assessment of need;
(iv) discuss the accomplishment of goals identified in any plan previously prepared under this paragraph; and
(v) reflect how the plan influenced funding decisions in the previous year.
(b) Technical assistance
(1) Strategic planning
Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments requesting support to develop and implement the strategic plan required under
Add. 5

subsection (a)(6). The Attorney General may enter into agreements with 1 or more non-governmental organizations to provide technical assistance and training under this paragraph. (2) Protection of constitutional rights Not later than 90 days after December 16, 2016, the Attorney General shall begin to provide technical assistance to States and local governments, including any agent thereof with responsibility for administration of justice, requesting support to meet the obligations established by the Sixth Amendment to the Constitution of the United States, which shall include--
(A) public dissemination of practices, structures, or models for the administration of justice consistent with the requirements of the Sixth Amendment; and (B) assistance with adopting and implementing a system for the administration of justice consistent with the requirements of the Sixth Amendment. (3) Authorization of appropriations For each of fiscal years 2017 through 2021, of the amounts appropriated to carry out this subpart, not less than $5,000,000 and not more than $10,000,000 shall be used to carry out this subsection.
Add. 6

34 U.S.C. § 10154 The Attorney General shall not finally disapprove any application (or any amendment to that application) submitted under this part without first affording the applicant reasonable notice of any deficiencies in the application and opportunity for correction and reconsideration.
Add. 7

34 U.S.C. § 10155 The Attorney General shall issue rules to carry out this part. The first such rules shall be issued not later than one year after the date on which amounts are first made available to carry out this part.
Add. 8

34 U.S.C. § 10156
(a) Allocation among States
(1) In general
Of the total amount appropriated for this part, the Attorney General shall, except as provided in paragraph (2), allocate--
(A) 50 percent of such remaining amount to each State in amounts that bear the same ratio of--
(i) the total population of a State to--
(ii) the total population of the United States; and
(B) 50 percent of such remaining amount to each State in amounts that bear the same ratio of--
(i) the average annual number of part 1 violent crimes of the Uniform Crime Reports of the Federal Bureau of Investigation reported by such State for the three most recent years reported by such State to--
(ii) the average annual number of such crimes reported by all States for such years.
(2) Minimum allocation
If carrying out paragraph (1) would result in any State receiving an allocation less than 0.25 percent of the total amount (in this paragraph referred to as a “minimum allocation State”), then paragraph (1), as so carried out, shall not apply, and the Attorney General shall instead--
(A) allocate 0.25 percent of the total amount to each State; and
(B) using the amount remaining after carrying out subparagraph (A), carry out paragraph (1) in a manner that excludes each minimum allocation State, including the population of and the crimes reported by such State.
(b) Allocation between States and units of local government
Of the amounts allocated under subsection (a) of this section--
(1) 60 percent shall be for direct grants to States, to be allocated under subsection (c) of this section; and
(2) 40 percent shall be for grants to be allocated under subsection (d) of this section.
Add. 9

(c) Allocation for State governments
(1) In general
Of the amounts allocated under subsection (b)(1) of this section, each State may retain for the purposes described in section 3751 of this title an amount that bears the same ratio of--
(A) total expenditures on criminal justice by the State government in the most recently completed fiscal year to--
(B) the total expenditure on criminal justice by the State government and units of local government within the State in such year.
(2) Remaining amounts
Except as provided in subsection (e)(1) of this section, any amounts remaining after the allocation required by paragraph (1) shall be made available to units of local government by the State for the purposes described in section 3751 of this title.
(d) Allocations to local governments
(1) In general
Of the amounts allocated under subsection (b)(2) of this section, grants for the purposes described in section 3751 of this title shall be made directly to units of local government within each State in accordance with this subsection, subject to subsection (e) of this section.
(2) Allocation
(A) In general
From the amounts referred to in paragraph (1) with respect to a State (in this subsection referred to as the “local amount”), the Attorney General shall allocate to each unit of local government an amount which bears the same ratio to such share as the average annual number of part 1 violent crimes reported by such unit to the Federal Bureau of Investigation for the 3 most recent calendar years for which such data is available bears to the number of part 1 violent crimes reported by all units of local government in the State in which the unit is located to the Federal Bureau of Investigation for such years.
(B) Transitional rule
Notwithstanding subparagraph (A), for fiscal years 2006, 2007, and 2008, the Attorney General shall allocate the local amount to units of local government in the same manner that, under the Local Government Law
Add. 10

Enforcement Block Grants program in effect immediately before January 5, 2006, the reserved amount was allocated among reporting and nonreporting units of local government.
(3) Annexed units
If a unit of local government in the State has been annexed since the date of the collection of the data used by the Attorney General in making allocations pursuant to this section, the Attorney General shall pay the amount that would have been allocated to such unit of local government to the unit of local government that annexed it.
(4) Resolution of disparate allocations
(A) Notwithstanding any other provision of this part, if--
(i) the Attorney General certifies that a unit of local government bears more than 50 percent of the costs of prosecution or incarceration that arise with respect to part 1 violent crimes reported by a specified geographically constituent unit of local government; and
(ii) but for this paragraph, the amount of funds allocated under this section to--
(I) any one such specified geographically constituent unit of local government exceeds 150 percent of the amount allocated to the unit of local government certified pursuant to clause (i); or
(II) more than one such specified geographically constituent unit of local government exceeds 400 percent of the amount allocated to the unit of local government certified pursuant to clause (i),
then in order to qualify for payment under this subsection, the unit of local government certified pursuant to clause (i), together with any such specified geographically constituent units of local government described in clause (ii), shall submit to the Attorney General a joint application for the aggregate of funds allocated to such units of local government. Such application shall specify the amount of such funds that are to be distributed to each of the units of local government and the purposes for which such funds are to be used. The units of local government involved may
Add. 11

establish a joint local advisory board for the purposes of carrying out this paragraph.
(B) In this paragraph, the term “geographically constituent unit of local government” means a unit of local government that has jurisdiction over areas located within the boundaries of an area over which a unit of local government certified pursuant to clause (i) has jurisdiction.
(e) Limitation on allocations to units of local government
(1) Maximum allocation
No unit of local government shall receive a total allocation under this section that exceeds such unit's total expenditures on criminal justice services for the most recently completed fiscal year for which data are available. Any amount in excess of such total expenditures shall be allocated proportionally among units of local government whose allocations under this section do not exceed their total expenditures on such services.
(2) Allocations under $10,000
If the allocation under this section to a unit of local government is less than $10,000 for any fiscal year, the direct grant to the State under subsection (c) of this section shall be increased by the amount of such allocation, to be distributed (for the purposes described in section 3751 of this title) among State police departments that provide criminal justice services to units of local government and units of local government whose allocation under this section is less than $10,000.
(3) Non-reporting units
No allocation under this section shall be made to a unit of local government that has not reported at least three years of data on part 1 violent crimes of the Uniform Crime Reports to the Federal Bureau of Investigation within the immediately preceding 10 years.
(f) Funds not used by the State
If the Attorney General determines, on the basis of information available during any grant period, that any allocation (or portion thereof) under this section to a State for such grant period will not be required, or that a State will be unable to qualify or receive funds under this part, or that a State chooses not to participate in the program established under this part, then such State's allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State, giving priority to those jurisdictions with the highest annual number of part 1 violent crimes of the Uniform Crime Reports reported by the unit
Add. 12

of local government to the Federal Bureau of Investigation for the three most recent calendar years for which such data are available. (g) Special rules for Puerto Rico
(1) All funds set aside for Commonwealth government Notwithstanding any other provision of this part, the amounts allocated under subsection (a) of this section to Puerto Rico, 100 percent shall be for direct grants to the Commonwealth government of Puerto Rico. (2) No local allocations Subsections (c) and (d) of this section shall not apply to Puerto Rico. (h) Units of local government in Louisiana In carrying out this section with respect to the State of Louisiana, the term “unit of local government” means a district attorney or a parish sheriff. (i) Part 1 violent crimes to include human trafficking For purposes of this section, the term “part 1 violent crimes” shall include severe forms of trafficking in persons (as defined in section 7102 of Title 22).
Add. 13

34 U.S.C. § 10157 (a) Of the total amount made available to carry out this part for a fiscal year, the Attorney General shall reserve not more than--
(1) $20,000,000, for use by the National Institute of Justice in assisting units of local government to identify, select, develop, modernize, and purchase new technologies for use by law enforcement, of which $1,000,000 shall be for use by the Bureau of Justice Statistics to collect data necessary for carrying out this part; and (2) $20,000,000, to be granted by the Attorney General to States and units of local government to develop and implement antiterrorism training programs. (b) Of the total amount made available to carry out this part for a fiscal year, the Attorney General may reserve not more than 5 percent, to be granted to 1 or more States or units of local government, for 1 or more of the purposes specified in section 3751 of this title, pursuant to his determination that the same is necessary-(1) to combat, address, or otherwise respond to precipitous or extraordinary increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula established under section 3755 of this title.
Add. 14

34 U.S.C. § 10158 (a) Trust fund required A State or unit of local government shall establish a trust fund in which to deposit amounts received under this part. (b) Expenditures
(1) In general Each amount received under this part (including interest on such amount) shall be expended before the date on which the grant period expires. (2) Repayment A State or unit of local government that fails to expend an entire amount (including interest on such amount) as required by paragraph (1) shall repay the unexpended portion to the Attorney General not later than 3 months after the date on which the grant period expires. (3) Reduction of future amounts If a State or unit of local government fails to comply with paragraphs (1) and (2), the Attorney General shall reduce amounts to be provided to that State or unit of local government accordingly. (c) Repaid amounts Amounts received as repayments under this section shall be subject to section 3712g of this title as if such amounts had not been granted and repaid. Such amounts shall be deposited in the Treasury in a dedicated fund for use by the Attorney General to carry out this part. Such funds are hereby made available to carry out this part.
Add. 15

34 U.S.C. § 10102 (a) Specific, general and delegated powers The Assistant Attorney General shall--
(1) publish and disseminate information on the conditions and progress of the criminal justice systems; (2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants. (b) Annual report to President and Congress The Assistant Attorney General shall submit an annual report to the President and to the Congress not later than March 31 of each year.
Add. 16

CERTIFICATE OF SERVICE I certify that on December 28, 2017, I electronically filed the attached Brief of Plaintiff-Appellee with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that service on all CM/ECF registered users will be accomplished by the CM/ECF system.
/s/Benna Ruth Solomon BENNA RUTH SOLOMON Deputy Corporation Counsel City of Chicago 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-7764

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(i) and Cir. R. 32(c). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(a)(7)(B), the brief contains 13,327 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Garamond font. As permitted by Fed. R. App. P. 32(a)(7)(B), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate.

December 28, 2017

/s/Benna Ruth Solomon BENNA RUTH SOLOMON Deputy Corporation Counsel City of Chicago 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 (312) 744-7764

 
 Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 1 of 34 PageID #:1832

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff, v.

Civil Action No. 1:17-cv-05720 Hon. Harry D. Leinenweber

JEFF SESSIONS, Attorney General of the United States,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

DATED: January 3, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
JOHN R. TYLER Assistant Director
ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 2 of 34 PageID #:1833
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD..................................................................................................................... 2 ARGUMENT .................................................................................................................................. 2
I. The City Does Not Challenge Final Agency Action That Is Judicially Reviewable. .... 2 II. The City’s Ultra Vires and Separation of Powers Claims Fail Because the
Challenged Conditions Are Authorized by Statute. ....................................................... 5 III. The Challenged Conditions Are Consistent with the Spending Clause. ........................ 9 IV. The Challenged Conditions Do Not Commandeer the City......................................... 15 V. The Court Should Decline the City’s Request for a Declaration That the City
Complies with 8 U.S.C. § 1373.................................................................................... 17 VI. The Challenged Conditions Are Not Arbitrary or Capricious. .................................... 21 VII. The City’s Notice-and-Comment Claim Fails.............................................................. 23 VIII. The City’s Paperwork Reduction Act Claim Fails. .................................................... 23 CONCLUSION............................................................................................................................. 25
i

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 3 of 34 PageID #:1834
TABLE OF AUTHORITIES
Cases Abbs v. Sullivan,
963 F.2d 918 (7th Cir. 1992)....................................................................................................... 4 A.G. Edwards & Sons, Inc. v. Pub. Bldg. Comm’n of St. Clair Cty.,
921 F.2d 118 (7th Cir. 1990)..................................................................................................... 17 Alegent Health-Immanuel Med. Ctr. v. Sebelius,
34 F. Supp. 3d 160 (D.D.C. 2014) ............................................................................................ 24 Ameron, Inc. v. U.S. Army Corps of Eng’rs,
809 F.2d 979 (3d Cir. 1986) ........................................................................................................ 5 Arizona v. United States,
567 U.S. 387 (2012) .................................................................................................. 1, 11, 16, 23 Barbour v. Wash. Metro. Area Transit Auth.,
374 F.3d 1161 (D.C. Cir. 2004) .................................................................................................. 9 Bennett Enters., Inc. v. Domino’s Pizza, Inc.,
45 F.3d 493 (D.C. Cir. 1995) ...................................................................................................... 8 Bennett v. Spear,
520 U.S. 154 (1997) .................................................................................................................... 3 Charles v. Verhagen,
220 F. Supp. 2d 955 (W.D. Wis. 2002)..................................................................................... 10 Charles v. Verhagen,
348 F.3d 601 (7th Cir. 2003)........................................................................................... 9, 10, 14 Charlton Mem’l Hosp. v. Sullivan,
816 F. Supp. 50 (D. Mass. 1993) ................................................................................................ 3 Citizens for Appropriate Rural Roads v. Foxx,
815 F.3d 1068 (7th Cir. 2016)................................................................................................. 3, 4 City of New York v. United States,
179 F.3d 29 (2d Cir. 1999) ........................................................................................................ 16
ii

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 4 of 34 PageID #:1835
Clinton v. City of New York, 524 U.S. 417 (1998) .................................................................................................................... 5
Commodity Futures Trading Comm’n v. Monex Deposit Co., 824 F.3d 690 (7th Cir. 2016)....................................................................................................... 4
Dean v. United States, 556 U.S. 568 (2009) .................................................................................................................. 20
Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922 (1990) .................................................................................................................... 8
Diamond v. Chakrabarty, 447 U.S. 303 (1980) .................................................................................................................. 14
DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989) .................................................................................................... 5
Duvall v. Atty. Gen. of U.S., 436 F.3d 382 (3d Cir. 2006) ...................................................................................................... 10
Elward v. Electrolux Home Prods., Inc., 214 F. Supp. 3d 701 (N.D. Ill. 2016) ........................................................................................ 19
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ............................................................................................................ 21, 22
Freilich v. Bd. of Directors of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679 (D. Md. 2001) .......................................................................................... 16
FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) .................................................................................................................... 4
Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012)....................................................................................................... 2
Gregory v. Ashcroft, 501 U.S. 452 (1991) .................................................................................................................. 16
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009)....................................................................................................... 2
Harris Cty. Tex. v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015)..................................................................................................... 19
iii

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 5 of 34 PageID #:1836
Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d 1123 (D.N.M. 2015) ......................................................................................... 3
Lincoln v. Vigil, 508 U.S. 182 (1993) .................................................................................................................. 23
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002)..................................................................................................... 9
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................................................................................ 15, 16
Nat’l Wildlife Fed’n v. Snow, 561 F.2d 227 (D.C. Cir. 1976) .................................................................................................. 23
New York v. United States, 505 U.S. 144 (1992) .................................................................................................................... 9
Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) ...................................................................................................................... 4
Padilla v. Kentucky, 559 U.S. 356 (2010) .................................................................................................................. 10
Pozzie v. U.S. Dep’t of Hous. & Urban Dev., 48 F.3d 1026 (7th Cir. 1995)..................................................................................................... 21
Printz v. United States, 521 U.S. 898 (1997) .................................................................................................................. 16
Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007)..................................................................................................... 4
Reno v. Condon, 528 U.S. 141 (2000) .................................................................................................................. 16
Rivas v. Martin, 781 F. Supp. 2d 775 (N.D. Ind. 2011)....................................................................................... 13
Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074 (10th Cir. 2006)................................................................................................... 3
S. Dakota v. Dole, 483 U.S. 203 (1987) ........................................................................................................... passim
iv

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 6 of 34 PageID #:1837
Sierra Club v. Atlanta Reg’l Comm’n, 255 F. Supp. 2d 1319 (N. D. Ga. 2002) .................................................................................... 23
Smith v. Office of Civilian Health & Med. Program of Uniformed Servs., 97 F.3d 950 (7th Cir. 1996)....................................................................................................... 21
Steffel v. Thompson, 415 U.S. 452 (1974) .................................................................................................................. 18
Stone v. INS, 514 U.S. 386 (1995) .................................................................................................................... 7
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999)..................................................................................................... 24
Thomas v. City of Peoria, 580 F.3d 633 (7th Cir. 2009)..................................................................................................... 13
Tozzi v. EPA, 148 F. Supp. 2d 35 (D.D.C. 2001) ............................................................................................ 24
U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 844 F.2d 1087 (4th Cir. 1988)..................................................................................................... 8
United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (1988) .................................................................................................................. 20
United States v. Odneal, 565 F.2d 598 (9th Cir. 1977)....................................................................................................... 8
United States v. Salerno, 481 U.S. 739 (1987) .................................................................................................................. 16
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ............................................................................................................ 17, 18
Statutes, Regulations, and Ordinances Municipal Code of Chicago § 2-173-042 .............................................................................. 13, 19 5 C.F.R. § 1320.3(f) ...................................................................................................................... 25 5 U.S.C. § 553(a) .......................................................................................................................... 23
v

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 7 of 34 PageID #:1838
5 U.S.C. § 701(a) .......................................................................................................................... 24 5 U.S.C. § 704................................................................................................................................. 3 5 U.S.C. § 706(2) ............................................................................................................................ 3 8 U.S.C. § 1226...................................................................................................................... passim 8 U.S.C. § 1227(a) .................................................................................................................. 10, 22 8 U.S.C. § 1231(a).........................................................................................................................11 8 U.S.C. § 1252c ........................................................................................................................... 11 8 U.S.C. § 1324(c) ........................................................................................................................ 11 8 U.S.C. § 1357(g) ............................................................................................................ 11, 19, 23 8 U.S.C. § 1373...................................................................................................................... passim 18 U.S.C. § 1913........................................................................................................................... 14 28 U.S.C. § 530C(a)........................................................................................................................ 5 28 U.S.C. § 2201(a) ...................................................................................................................... 17 31 U.S.C. § 1352........................................................................................................................... 14 34 U.S.C. § 10101............................................................................................................................5 34 U.S.C. § 10102(a) ............................................................................................................ 5, 6, 23 34 U.S.C. § 10110............................................................................................................................5 34 U.S.C. § 10152(a) .................................................................................................................... 10 34 U.S.C. § 10153(a) .......................................................................................................... 1, 5, 7, 8 34 U.S.C. § 10154........................................................................................................................... 3 34 U.S.C. § 10444(7) ...................................................................................................................... 6 41 U.S.C. § 4712........................................................................................................................... 15 44 U.S.C. § 3512..................................................................................................................... 24, 25
vi

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 8 of 34 PageID #:1839 Other Authorities DOJ Reauthorization Act of 2005,
Pub. L. No. 109-162, 119 Stat. 2960 (2006) ............................................................................... 6 H.R. Rep. No. 104-469 (1996).......................................................................................................20 H.R. Rep. No. 109-233 (2005).........................................................................................................6 Joint Resolution Making Continuing Appropriations of FY 1985,
Pub. L. No. 98-473, 98 Stat. 1837 (1984) ................................................................................... 6
vii

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 9 of 34 PageID #:1840
INTRODUCTION The City of Chicago has adopted local policies of non-cooperation that frustrate the federal government’s ability to remove criminal aliens from the country. In this suit, the City now seeks to obstruct federal prerogatives additionally by blocking the Department of Justice from conditioning the receipt of federal dollars under the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”) on cooperation in immigration-related law enforcement. The Department notified applicants that Fiscal Year (“FY”) 2017 Byrne JAG awards will include three conditions requiring modest cooperation with federal law enforcement prerogatives in the immigration setting. Those conditions will require grantees to (1) have a policy of providing the U.S. Department of Homeland Security (“DHS”) with advance notice of the scheduled release date of certain individuals held in state or local correctional facilities (the “notice condition”); (2) have a policy permitting federal agents to access state or local correctional facilities for certain immigration enforcement purposes (the “access condition”); and (3) comply with a federal statute, 8 U.S.C. § 1373, that prohibits state and local government and law enforcement entities or officials from restricting certain communications with DHS (the “compliance condition”). See Request for Judicial Notice (“RJN”) Ex. A (2017 Greenville Award) ¶¶ 53, 55, 56. The call for intergovernmental law enforcement cooperation embodied in these three conditions follows from recognition that “[c]onsultation between federal and state officials is an important feature of the immigration system.” Arizona v. United States, 567 U.S. 387, 411 (2012). And the conditions are consonant with the Byrne JAG Program’s purposes of ensuring that grantees “report such data . . . and information (programmatic and financial) as the Attorney General may reasonably require” and undertake “appropriate coordination with affected agencies.” 34 U.S.C. § 10153(a)(4), (5). The City’s suit nevertheless attacks the prospective imposition of these conditions, and seeks a declaration that the City complies with Section 1373.
1

Case: 1:17-cv-05720 Document #: 139 Filed: 01/03/18 Page 10 of 34 PageID #:1841

The Complaint warrants dismissal in its entirety. The City’s claims fail on the threshold

ground that they prematurely seek to preempt the Department’s administrative processes. On their merits, the City’s claims fail because they contravene clear statutory language authorizing the Department to condition Byrne JAG funding; ignore the close relationship between the grant conditions, federal law enforcement prerogatives, and the purposes of the Byrne JAG Program; and otherwise suffer from various legal defects. At bottom, the City cannot sustain its

counterintuitive theory that Byrne JAG applicants can insist on their entitlement to a federal law enforcement grant even as they refuse to provide basic cooperation in immigration enforcement, which the Department has identified as a federal priority and which plainly intersects with criminal justice under the framework of the Immigration and Nationality Act (“INA”).

LEGAL STANDARD “Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a claim for lack of subject matter jurisdiction.” Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Id. In deciding a motion to dismiss, a court may consider “the complaint itself, documents attached to the complaint,

documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).1

ARGUMENT I. The City Does Not Challenge Final Agency Action That Is Judicially Reviewable.
Irrespective of how the City’s claims are styled in the Complaint, all claims challenging

imposition of the three conditions are brought under the Administrative Procedure Act (“APA”).

The APA governs review of agency action that is alleged to be “arbitrary, capricious, an abuse of

1

Concurrent with filing this motion, the Department submits a Request for Judicial Notice that

attaches various documents for the Court’s consideration in adjudicating this motion.

2

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discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdictions, authority, or limitations[.]” 5 U.S.C. § 706(2)(A)-(C). Except for Count Five seeking a declaration regarding compliance with 8 U.S.C. § 1373, all the City’s claims come within the APA’s scope. See, e.g., Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006) (“We review Robbins’ due process claim against the [agency] under the framework set forth in the APA.”); Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d 1123, 1170 (D.N.M. 2015) (“The presence of a constitutional claim does not take a court’s review outside of the APA, however—§ 706(2)(B) specifically contemplates adjudication of constitutional issues . . . .”); Charlton Mem’l Hosp. v. Sullivan, 816 F. Supp. 50, 51 (D. Mass. 1993) (constitutional claims in APA case “cannot so transform the case that it ceases to be primarily a case involving judicial review of agency action”).
“In the context of judicial review under the APA, a challenge to agency conduct is ripe only if it is filed after the final agency action.” Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (citing 5 U.S.C. § 704). To qualify as “final agency action” under 5 U.S.C. § 704, “the action must mark the consummation of the agency’s decisionmaking process” and also “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).
The Complaint does not identify a final agency action that allows APA review. The City sued before seeing the text of the actual conditions, and even now the Department has not yet acted on the City’s FY 2017 Byrne JAG application. The City might never receive any FY 2017 award (irrespective of conditions that could have been attached to it), or an award to the City might not contain at least some of the challenged conditions. And by statute there is an administrative review-and-reconsideration process to be followed before “finally disapprov[ing]” the City’s FY 2017 Byrne JAG application, until which time there is no final agency action. 34 U.S.C. § 10154.
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Accordingly, no final agency action has been taken against the City. See Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1104 (9th Cir. 2007) (no “final agency action until [agency] completes its review of the grant application and decides [whether] to disburse the appropriated funds”). As concerns the City’s challenge to the conditions, there has been no consummation of the Department’s decisionmaking process, no determination of rights or obligations, and no legal consequence that flows. Cf. Citizens, 815 F.3d at 1079 (affirming dismissal because “a challenge to agency conduct is ripe only if it is filed after the final agency action” insofar as the challenge otherwise “rests upon contingent future events that may not occur as anticipated, or that may not occur at all”). The City’s claims improperly attempt to preempt the administrative process that would create such finality: “A challenge to administrative action . . . falls outside the grant of jurisdiction in . . . the Administrative Procedure Act when the only harm the challenger seeks to avert is the inconvenience of having to go through the administrative process before obtaining a definitive declaration of his legal rights.” Abbs v. Sullivan, 963 F.2d 918, 927 (7th Cir. 1992).
It is for good reason that “[t]he propriety of an agency’s action is reviewed after the final administrative decision.” Commodity Futures Trading Comm’n v. Monex Deposit Co., 824 F.3d 690, 692 (7th Cir. 2016). “The principal purpose of the APA[’s] limitations . . . is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004). “[T]he effect of the judicial review sought by [the City] is likely to be interference with the proper functioning of the agency and a burden for the courts.” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980) (finding no final agency action, and cautioning that APA review is not “a means of turning prosecutor into defendant before adjudication concludes”). The City’s claims challenging imposition of the three conditions falter on this threshold ground, apart from the failure of those claims on their merits.
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II. The City’s Ultra Vires and Separation of Powers Claims Fail Because the Challenged Conditions Are Authorized by Statute. Counts One and Two of the Complaint respectively allege that the challenged conditions
are ultra vires, see Compl. ¶¶ 76-85 (Dkt. No. 1), and violate the Constitution’s separation of powers, see id. ¶¶ 86-93. Both theories rest fundamentally on the City’s incorrect view that Congress has not authorized the Department to impose these conditions. See id. ¶¶ 78, 83, 90-92.
Congress of course may delegate to the Executive Branch the authority to attach conditions on funding. See, e.g., Clinton v. City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the President the authority to spend, or not to spend, particular sums of money.”); Ameron, Inc. v. U.S. Army Corps of Eng’rs, 809 F.2d 979, 983 (3d Cir. 1986) (“Congress appropriates funds for a wide variety of purposes and delegates to executive branch officials the authority to make certain decisions regarding how those funds are to be spent.”); DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding statutory delegation to the Executive to impose terms and conditions on federal spending programs).
Relevant to administration of the Byrne JAG Program, Congress authorized the Department to “plac[e] special conditions on all grants,” 34 U.S.C. § 10102(a)(6), to “determin[e] priority purposes for formula grants,” id., and to ensure that grantees “comply with . . . all other applicable Federal laws.” Id. § 10153(a)(5)(D). These capacious delegations of authority empower the Department to impose the challenged conditions to promote intergovernmental law enforcement cooperation, so that grantee policies do not impair federal policies.
A. The Attorney General has “final authority over all functions, including any grants” made by the Department’s Office of Justice Programs (“OJP”), which administers the Byrne JAG Program. Id. § 10110. Under the Attorney General’s authority, an Assistant Attorney General (“AAG”) heads OJP. See id. § 10101; 28 U.S.C. § 530C(a)(4). In setting forth the duties and
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functions of the AAG, Congress stated that the AAG is to “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” Id. § 10102(a)(6). A plain reading of the statutory text indicates that the AAG’s power must include, at a minimum, the power to “plac[e] special conditions on all grants” administered by OJP. The breadth of the AAG’s statutory power is reinforced by the AAG’s authority to “determin[e] priority purposes for formula grants.” Id. Confirming the statute’s plain text, a report accompanying the enactment of this language stated that the provision “allows the Assistant Attorney General to place special conditions on all grants and to determine priority purposes for formula grants.” H.R. Rep. No. 109-233, at 101 (2005).
Indeed, the particular statutory language at issue here—the authority for “placing special conditions on all grants, and determining priority purposes for formula grants”—was added as part of the very same legislation that created the Byrne JAG Program. See DOJ Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), § 1152(b) (adding language to subsection (a)(6)); id. § 1111 (creating Byrne JAG Program). Prior to that 2006 enactment, the provision stated only that the AAG for OJP “exercise[s] such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General.” Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473, § 603, 98 Stat. 1837 (1984). The organic statute enacted in 2002 for the head of a separate Department grantmaking component, by comparison, continues to contain substantially the same, more limited language as Section 10102 earlier used to contain, without the additional “special conditions” and “priority purposes” powers that Congress elected to bestow with respect to OJP. See 34 U.S.C. § 10444(7) (providing only that Director of Violence Against Women Office “[e]xercis[es] such other powers and functions as may be vested in the Director pursuant to this subchapter or by
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delegation of the Attorney General”). This context confirms that Congress did intend the “special conditions” and “priority purposes” language to confer distinctive and meaningful power. “When Congress acts to amend a statute, [courts] presume it intends its amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).
The challenged conditions come comfortably within the fonts of delegated power in Section 10102(a)(6). Pursuant to this authority, the AAG may prioritize formula grants, like the Byrne JAG Program, for jurisdictions that cooperate with federal authorities in achieving federal law enforcement priorities, including removal of criminal aliens under immigration law.
B. Independent of the authority conferred in Section 10102(a)(6), a separate source of authority further supports the compliance condition. Underscoring the Byrne JAG Program’s emphasis on intergovernmental cooperation so that grantee policies do not impair federal policies, the Department has statutory authority to ensure that Byrne JAG grantees “comply with . . . all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D). Section 1373 is, of course, a federal law. According to the City, however, it “is not an ‘applicable’ law.” Compl. ¶ 83. The City contends that the phrase “applicable Federal laws” refers only to “laws that regulate the conduct of federal grant recipients as grant recipients.” Id.
The City’s straightjacketed interpretation of this statutory text is inconsistent with a plain reading of the statute. The relevant statutory language provides that a Byrne JAG applicant “shall submit an application . . . in such form as the Attorney General may require,” to “include . . . [a] certification, made in a form acceptable to the Attorney General . . . that . . . the applicant will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a). Congress’s decision to empower the Attorney General to determine the form of Byrne JAG applications renders the most natural reading of this provision as a delegation to the Attorney General to determine whether a particular federal law constitutes an “applicable Federal law[].”
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Id. If Congress had intended to limit the term “applicable Federal laws” as referencing only statutes of the kind that the City suggests, it could have done so expressly. Instead, under this power, the Department may condition Byrne JAG grants if it gives notice, as it provided here for Section 1373, that it has determined that a federal law is “applicable.”
Rather than the City’s narrow construction, courts have broadly interpreted the term “applicable laws.” See, e.g., Dep’t of Treasury v. Fed. Labor Relations Auth., 494 U.S. 922, 930 (1990) (interpreting statutory term “applicable laws” as “laws outside the Act”); see also Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir. 1995) (noting that “all applicable laws” is “not reasonably or fairly susceptible to an interpretation that does not encompass compliance with state and federal tax laws”); U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 844 F.2d 1087, 1094-95 (4th Cir. 1988) (finding statutory requirement that Executive Branch managers follow “applicable laws” to exclude federal agency circulars but to reach laws made by Congress); United States v. Odneal, 565 F.2d 598, 600 (9th Cir. 1977) (statutory reference to “all applicable federal laws” granted “very broad statutory authority”).
Instead of “applicable Federal laws” being cabined artificially to those laws that “regulate grantees as grantees” or “mention federal grants or funds,” Compl. ¶ 83, a natural and coherent reading is that “applicable Federal laws” refers simply to the corpus of federal laws that actually do apply, independently, to Byrne JAG grantees. (8 U.S.C. § 1373 is, of course, one such law.) Here, it is important to bear in mind the context of the Byrne JAG Program, where all grantees are state and local jurisdictions rather than private individuals or entities. The limitation in Section 10153(a)(5)(D) to “applicable Federal laws” accordingly restricts the Department from requiring certification of compliance with, for example, federal tax laws that by their terms apply to private individuals rather than to the state and local jurisdictions that the Byrne JAG Program contemplates as grantees. It is entirely sensible for Congress to have used the word “applicable”
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in Section 10153(a)(5)(D) with this meaning tailored to the class of potential grantees, and there is nothing implausible about Congress expecting a recipient of federal funds to certify its compliance with a federal law where the recipient is—independent of receiving those federal funds—already obligated to comply with that federal law. III. The Challenged Conditions Are Consistent with the Spending Clause.
Count Three of the Complaint contends that the challenged conditions violate the Spending Clause because allegedly they are not germane to the Byrne JAG Program, see Compl. ¶¶ 97-102, would induce Fourth Amendment violations, see id. ¶¶ 103-12, are ambiguous, see id. ¶¶ 113-18, and are coercive, see id. ¶¶ 119-23. Each of these contentions is wrong.
A. In Dole, the Supreme Court stated that “conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.” S. Dakota v. Dole, 483 U.S. 203, 207 (1987) (citation omitted). Courts have generally found that the relatedness showing does not pose a difficult hurdle. The Supreme Court in Dole upheld conditioning receipt of federal highway funds on the only loosely-related requirement that a state adopt a minimum drinking age of twenty-one. See id. at 208. Only “some relationship” is necessary between spending conditions and “the purpose of the federal spending.” New York v. United States, 505 U.S. 144, 167 (1992). The Ninth Circuit thus rejects “an exacting standard for relatedness,” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), and the D.C. Circuit observes that the Supreme Court has never “overturned Spending Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004).
The Seventh Circuit explored relatedness in a case where state prison officials challenged a requirement to abide by a federal statute as a condition of federal corrections funding. See Charles v. Verhagen, 348 F.3d 601, 609 (7th Cir. 2003). The state officials argued that “there must be a particularized relationship between a condition’s subject matter and the underlying
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federal grant to which the condition attaches.” Charles v. Verhagen, 220 F. Supp. 2d 955, 963-64 (W.D. Wis. 2002). The district court rejected that argument, and the Seventh Circuit affirmed that decision, explaining that a challenged condition and the funding program need only “share[] the same goal,” which, there, was “the goal of [prisoner] rehabilitation.” Charles, 348 F.3d at 609.
The grant conditions at issue here satisfy the relatedness requirement. The Byrne JAG Program’s organic statute specifies that Byrne JAG funds are designed to provide resources “for criminal justice,” to support programs including law enforcement, prosecution, crime prevention, and corrections. 34 U.S.C. § 10152(a)(1). These goals are also reflected in the responsibilities of the AAG, which involve “maintain[ing] liaison” and disseminating information regarding “criminal justice.” Id. § 10102(a)(1), (2). Contrary to the City’s view that the Byrne JAG Program’s goal is to promote “local flexibility,” Compl. ¶ 99, the program’s overall goals are much broader: to support and strengthen law enforcement and criminal justice.2 And as the Department has stated, the challenged conditions emanate from the “top priority of reducing violent crime” and “long-established cooperative principles among law enforcement agencies.” Dkt. No. 1-2.
Immigration enforcement, which the conditions promote, undoubtedly intersects with the Byrne JAG Program’s criminal justice purposes, at a minimum for the simple reason that a conviction for any of a wide array of criminal offenses renders an alien removable from this country. See 8 U.S.C. § 1227(a)(2). Indeed, “[a] primary goal of several recent overhauls of the INA has been to ensure and expedite the removal of aliens convicted of serious crimes.” Duvall v. Atty. Gen. of U.S., 436 F.3d 382, 391 (3d Cir. 2006); see also Padilla v. Kentucky, 559 U.S. 356,

2

The City cannot generate a relatedness problem with reference to the particular uses to which the

City elects to put its Byrne JAG funds. See Compl. ¶¶ 98, 100 (challenging conditions’ relatedness to City’s

use of funds for “patrol cars,” “community programs,” and “law enforcement equipment”). That framing

incorrectly focuses on the local interest in how the grant is used in the locality, instead of the “federal

interest in particular national projects or programs.” Dole, 483 U.S. at 207. Moreover, the reach of the

conditions is limited “to the ‘program or activity’ that is funded (in whole or in part) by this award.” RJN

Ex. A (2017 Greenville Award) ¶¶ 55, 56; see also id. ¶ 53 (substantially the same language).

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360 (2010) (observing that “deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes” (citation omitted)). Once removed, a criminal alien who has committed a removable offense—e.g., an aggravated felony, domestic violence, child abuse, or certain firearm offenses—is no longer present in this country with the potential to re-offend.
The Immigration and Nationality Act (“INA”) also repeatedly contemplates cooperation among state and local officers and federal officials on immigration enforcement. See, e.g., 8 U.S.C. § 1357(g) (authorizing formal cooperative agreements under which trained and qualified state and local officers may perform specified functions of a federal immigration officer in relation to the investigation, apprehension, or detention of aliens); 8 U.S.C. § 1324(c) (authorizing state and local officers to make arrests for violations of the INA’s prohibition against smuggling, transporting, or harboring aliens); 8 U.S.C. § 1252c (authorizing state and local officers to arrest certain felons who have unlawfully returned to the United States). Under authorities such as these, “state officers may perform the functions of an immigration officer.” Arizona, 567 U.S. at 408.
Furthermore, insofar as the INA contemplates the federal detention of certain aliens upon their release from state or local custody, see 8 U.S.C. § 1226(c), the conditions can be understood as seeking to ensure that a state or local grantee’s law enforcement activities will not impair the law enforcement activities of the federal government. Congress has mandated that certain aliens who have committed criminal offenses be taken into federal custody pending removal proceedings, but only “when the alien is released” from state custody. Id. § 1226(c)(1). With respect to incarcerated aliens subject to a final removal order, the INA establishes a “removal period” of 90 days that begins with the date of the alien’s release. Id. § 1231(a)(1)(B). It is crucial to this cooperative law enforcement framework that states and localities respond to requests for release date information, allow federal agents to have access to detainees in their custody, and avoid restricting communication with DHS of information regarding immigration status.
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Given that the INA expressly contemplates local law enforcement activity with respect to immigration law enforcement, it is perfectly germane and appropriate for the Department to condition grant funding to promote this purpose. Even the City’s own Complaint reflects that immigration enforcement bears some relationship to criminal justice, because the City connects its local immigration enforcement policies to the City’s crime rates. See Compl. ¶¶ 2, 28. Accordingly, because there is some relationship between the conditions and the Byrne JAG Program’s goals, the conditions satisfy the constitutional relatedness requirement.
B. The Spending Clause does not authorize conditions that “induce the States to engage in activities that would themselves be unconstitutional.” Dole, 483 U.S. at 210. The City alleges that the notice and access conditions require the City to hold detainees in City custody longer than the Fourth Amendment permits. See Compl. ¶¶ 103-12. That contention is refuted by the plain text of the notice and access conditions, which were released after the City filed its Complaint. The conditions make clear that “[n]othing in th[ese] condition[s] shall be understood to authorize or require any recipient . . . to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.” RJN Ex. A (2017 Greenville Award) ¶¶ 55-56. The conditions also clarify that “[i]n the event that . . . the scheduled release date and time for an alien are such as not to permit the advance notice [of scheduled release] that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.” Id. The fully articulated conditions explicitly contravene the City’s Fourth Amendment concerns, and the Constitution neither forbids DHS employees from accessing detention facilities nor forbids local government employees from providing DHS with certain detainee release information. The City’s theory thus lacks merit.3

3

Even aside from the constitutionally valid language of the conditions, there is no Fourth

Amendment problem with a locality cooperating with a federal request to detain an alien after (cont’d . . .)

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C. Another limitation on the spending power is that when the federal government “desires to condition the States’ receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 207 (citation omitted). The City claims that all three conditions “are ambiguous as to what is expected of grant recipients in Chicago’s position.” Compl. ¶ 114. The City made that contention, however, without first seeing the text of the actual conditions.
As an initial matter, the Department has, in each of the challenged conditions that appears in the award document for a prospective grantee to consider accepting, invited submission of “[a]ny questions about the meaning or scope of this condition . . . before award acceptance.” RJN Ex. A (2017 Greenville Award) ¶¶ 53, 55, 56. The City’s assertion of ambiguity in this litigation comes before the City has availed itself of the invitation for administrative consultation.
With respect to the notice and access conditions, the alleged ambiguity, see Compl. ¶¶ 11516, is predicated once again on the City’s mistaken contemplation of Fourth Amendment problems due to prolonged detentions that do not in fact exist under the actual conditions. See supra at 12. The City moreover complained that it was unsure which detention facilities would be covered by the access condition, see id. ¶ 116, but the coverage of “correctional facilities” as used in the actual text of the conditions is defined therein. See RJN Ex. A (2017 Greenville Award) ¶¶ 55, 56.
As to the compliance condition, the City remarkably complains of supposed unconstitutional ambiguity concerning the City’s obligations under a statute with which the City
(. . . cont’d) a jail term has ended to facilitate an orderly transfer to DHS custody for removal proceedings. “[A]rrests for violations of purely civil laws are common enough . . . .” Thomas v. City of Peoria, 580 F.3d 633, 638 (7th Cir. 2009). And “[w]hen someone is arrested and detained without a warrant, it is presumptively reasonable for that person to be detained up to 48 hours . . . .” Rivas v. Martin, 781 F. Supp. 2d 775, 780 (N.D. Ind. 2011). Immigration arrests premised on detainers are supported by administrative warrants. See 8 U.S.C. § 1226(a); RJN Ex. B (ICE Policy No. 10074.2) §§ 2.4, 5.2. Indeed, the City permits such detentions under certain circumstances. See Municipal Code of Chicago § 2-173-042(c) (allowing cooperation with immigration detention request when detainee is a felon or known gang member).
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has been required to comply for over twenty years (entirely independent of any Byrne JAG award
condition), and for which the City provided a certification of its compliance in the FY 2016 grant
cycle. See Compl. ¶ 117; Dkt No. 1-1. The City moreover acknowledges, yet discounts, that the
Department issued public guidance on the requirements of Section 1373 that explains, in part:
Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information. Rather, the statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices.
Your personnel must be informed that notwithstanding any state or local policies to the contrary, federal law does not allow any government entity or official to prohibit the sending or receiving of information about an individual’s citizenship or immigration status with any federal, state or local government entity and officials. RJN Ex. C (Guidance Regarding Compliance with 8 U.S.C. 1373). The Complaint does not
explain what is ambiguous about that. “Broad general language is not necessarily ambiguous when
congressional objectives require broad terms.” Diamond v. Chakrabarty, 447 U.S. 303, 315
(1980). Moreover, the Department has now given the City additional guidance via a preliminary
assessment of the City’s compliance with Section 1373. See RJN Ex. D (Preliminary Assessment).
To the extent there is any uncertainty at the margins of Section 1373’s requirements, see
Compl. ¶ 118, such a penumbra does not make the compliance condition unconstitutionally
ambiguous. Indeed, “the exact nature of the conditions may be largely indeterminate, provided
that the existence of the conditions is clear, such that States have notice that compliance with the
conditions is required.” Charles, 348 F.3d at 607 (citation omitted). The City does not complain
about other Byrne JAG conditions requiring compliance with restrictions on lobbying under 18
U.S.C. § 1913 and 31 U.S.C. § 1352, RJN Ex. A (2017 Greenville Award) ¶ 19; compliance with
“federal appropriations statutes” generally, id. ¶ 20; reporting of evidence of violations of the False
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Claims Act, id. ¶ 21; and compliance with prohibitions on reprisal under 41 U.S.C. § 4712, id. ¶ 23. All those statutes on which unchallenged conditions are predicated could have some zone of uncertainty at the margin. The Section 1373 compliance condition presents no special problem of ambiguity that creates a constitutional infirmity. The City’s ambiguity theory thus fails.
D. Grant conditions may not be “so coercive as to pass the point at which pressure turns into compulsion.” Dole, 483 U.S. at 211 (citation omitted). The Supreme Court instructs that “courts should not conclude that [an enactment] is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear,” Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 681 (2012) (opinion of Scalia, Kennedy, Thomas & Alito, JJ.), such as where a state risks losing “over 10 percent of a State’s overall budget” if it declines to adopt certain conditions. Id. at 582 (emphasis added). The City cannot plausibly claim that the amount of funding available to the City under the Byrne JAG Program meets that constitutional threshold. For an FY 2017 Byrne JAG award, up to $2,201,634 is available to be awarded via the City’s application. See RJN Ex. E (2017 Illinois Local JAG Allocations). The City’s proposed budget for 2017 was $9.81 billion. See RJN Ex. F (City of Chicago 2017 Budget Overview) at 17. With the funds at issue constituting a maximum of 0.022% of the City’s budget, the claim of coercion fails. IV. The Challenged Conditions Do Not Commandeer the City.
The City alleges in Count Four of the Complaint that each of the challenged conditions would commandeer the City in violation of the Tenth Amendment. See Compl. ¶¶ 124-35. But this case involves a grant that the City is free to accept or reject, not any federal mandate that directly regulates the City. The relevant question here is not whether the grant conditions, if they were federally-compelled obligations of the City, would infringe the Tenth Amendment. A “perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.” Dole, 483 U.S.
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at 210. Instead, the only pertinent constitutional question presented is whether the grant conditions are a valid exercise of the Spending Clause power. In that context, the federal government “may offer funds to the States, and may condition those offers on compliance with specified conditions. These offers may well induce the States to adopt policies that the Federal Government itself could not impose.” NFIB, 567 U.S. at 537. Because the City may simply decline to participate in the Byrne JAG Program, the City’s commandeering claim has no purchase here.
To any extent that the City nevertheless could proceed with its claim that 8 U.S.C. § 1373, as an independent statutory mandate, is “facially unconstitutional” under a commandeering theory, Compl. ¶ 133, the City cannot meet its burden to show that “no set of circumstances exists under which the [Section 1373] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona, 567 U.S. at 394. “As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States” and “may legislate in areas traditionally regulated by the States.” Gregory v. Ashcroft, 501 U.S. 452, 45960 (1991). And courts “begin with the time-honored presumption that [a statute] is a constitutional exercise of legislative power.” Reno v. Condon, 528 U.S. 141, 148 (2000) (citation omitted).
The Second Circuit rejected a Tenth Amendment facial challenge to Section 1373 of the kind the City raises here. See City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999). The Tenth Amendment does not give states and localities “an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs,” particularly in the information sharing context. Id. at 34-35; see also Printz v. United States, 521 U.S. 898, 918 (1997) (contrasting federal statutes that “require only the provision of information to the Federal Government” with those that “force[] participation of the States’ executive in the actual administration of a federal program”); Freilich v. Bd. of Directors of Upper Chesapeake Health,
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Inc., 142 F. Supp. 2d 679, 697 (D. Md. 2001) (“This Court has found no case” holding that a statutory command to report information for a federal data bank “commandeers the state.”). The City’s commandeering theory is especially diminished here because the conditions allow a grantee to use awarded funds to cover the grantee’s costs incurred in implementing the conditions. See RJN Ex. A (2017 Greenville Award) ¶¶ 53, 55, 56.
Because the City challenges conditions attached to a grant that can be declined, and because the City moreover cannot show that 8 U.S.C. § 1373 as an independent statutory obligation is facially unconstitutional, the City’s commandeering claim warrants dismissal.4 V. The Court Should Decline the City’s Request for a Declaration That the City Complies
with 8 U.S.C. § 1373. Count Five of the Complaint seeks a declaration that the City complies with 8 U.S.C. §
1373. See Compl. ¶¶ 136-41. The Court should exercise its discretion to decline the City’s invitation for declaratory relief. If the Court were to reach this claim, the City is not entitled to the requested declaration because the City’s allegations suggest a violation of Section 1373.
A. Under the Declaratory Judgment Act, courts “may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a) (emphasis added). “[D]istrict courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995); see also A.G. Edwards & Sons, Inc. v. Pub. Bldg. Comm’n of St. Clair Cty., 921 F.2d 118, 120 (7th Cir. 1990) (noting “wide discretion” for abstention).

4

As to the notice condition, the commandeering claim fails for the further reason that it inaccurately

alleges that “[c]ompliance with the notice condition would require Chicago to hold detainees longer than it

currently does” and thereby force the City to “reorganize the manner in which [it] has chosen to balance its

Fourth Amendment obligations against its interest in effective law enforcement.” Compl. ¶ 127. The

condition does not require a grantee to hold a person in custody longer than the grantee otherwise would

have. See supra at 12.

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“[T]he propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power.” Wilton, 515 U.S. at 287 (citation omitted); see also id. at 288 (focusing on “considerations of practicality and wise judicial administration”). Under the circumstances here, the Court should decline to exercise declaratory jurisdiction.
First, declaratory jurisdiction—which is available to test the legality of a course of conduct prior to its implementation to avoid legal jeopardy—is inappropriate because the City seeks to test the legality of policies that have already been adopted. The jeopardy the City seeks to avoid via a declaration of rights already exists. A declaratory judgment, by contrast, “is an alternative to pursuit of the arguably illegal activity.” Steffel v. Thompson, 415 U.S. 452, 480 (1974).
Second, declaratory relief would preempt the administrative process the Department is presently conducting regarding the City’s Section 1373 compliance. In that process, the City has provided its explanation regarding whether it complies, see Dkt. No. 1-1, the Department has responded with a “preliminary assessment” that expressly disclaims “final agency action,” see RJN Ex. D, the City has responded further, see RJN Ex. G, and the Department has yet to render its final assessment. The Court prudently should wait for that process to complete itself, rather than intervening prematurely in an unripe dispute. The federal government has not requested a declaration that the City violates Section 1373, and the Court should not take up that question absent an enforcement action by the United States, which has also not occurred. As this Court stated in an earlier opinion in this case, the Department “has yet to make a determination about Chicago’s eligibility for funds” and if the Department “makes a final determination that Chicago is eligible for 2017 Byrne JAG funds, then no harm accrues to Chicago.” Dkt. No. 125 at 10.
Third, the City pursues declaratory relief without identifying an underlying cause of action. “It is well established that the Declaratory Judgment Act does not create an independent cause of
18

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action. It provides only an additional form of relief.” Elward v. Electrolux Home Prods., Inc., 214 F. Supp. 3d 701, 708 (N.D. Ill. 2016) (citation omitted). The City does not identify a right of action, in Section 1373 or elsewhere, to seek a declaration that the City complies with Section 1373. Cf. Harris Cty. Tex. v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015) (“The Counties do not contend that [the governing statute] itself creates a private right of action. Instead, the Counties believe that the Declaratory Judgment Act provides a right to relief because there is an ‘actual controversy.’ This argument is flawed because the Declaratory Judgment Act alone does not create a federal cause of action.”). Declaratory relief is thus unavailable.
B. If the Court nonetheless were to consider declaratory relief, the Court should find that the City’s claim fails. The City alleges that its agencies and agents generally are prohibited from “expending their time responding to [U.S. Customs and Immigration Enforcement (“ICE”)] inquiries or communicating with ICE regarding a person’s custody status or release date.” Compl. ¶ 26.b (citing Municipal Code of Chicago § 2-173-042). Such a policy suggests the City violates Section 1373(a) by restricting the sharing of “information regarding . . . immigration status.”5
Custody status and release dates are covered under Section 1373. The INA provides that the “immigration status of any individual” specifically “includ[es] . . . that a particular alien is not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(a) (emphasis added). “Present” means “being in a certain place and not elsewhere,” Webster’s New International Dictionary (2d ed. 1958), so the fact that an alien is in custody for a specific duration (in a certain place and not elsewhere) fits within the INA’s contemplation of immigration status.
Moreover, “information regarding . . . immigration status” is necessarily a broader category than “immigration status” itself. Comparison of subsections within Section 1373 demonstrates

5

The Department emphasizes that it has not made its final determination about the City’s compliance

with 8 U.S.C. § 1373, which turns on this and other City policies as well as the City’s practices and conduct

in implementing those policies—a subject on which the Department has not at this time taken discovery.

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that Congress used the broader “information regarding” formulation deliberately. Compare 8 U.S.C. § 1373(a) (concerning “information regarding . . . immigration status”) with 8 U.S.C. § 1373(c) (discussing “immigration status” but omitting the broader “information regarding” formulation). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, 556 U.S. 568, 573 (2009) (citation omitted). Indeed, the House Report accompanying the legislation stated that Section 1373 was intended “to give State and local officials the authority to communicate with the [Immigration and Naturalization Service] regarding the presence, whereabouts, and activities of illegal aliens.” H.R. Rep. No. 104-469, pt. 1, at 277 (1996) (emphasis added).
Custody and release information falls within the sweep of “information regarding . . . immigration status” that Congress intended under Section 1373(a). Indeed, it is relevant to the federal government’s statutory duties, enacted at the same time as Section 1373, to “take into custody any alien who” has committed certain offenses, 8 U.S.C. § 1226(c)(1)(A), and to “take into custody any alien who . . . is inadmissible . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation,” 8 U.S.C. § 1226(c)(1)(D). Section 1373(a) is sensibly read to reach information that assists the federal government in carrying out its statutory responsibilities under the same Act. See United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”).
Thus, if the Court were to entertain the City’s request for a declaration of compliance with Section 1373, the claim fails because the Complaint in at least one way suggests that the City violates the statute: by restricting the sharing of custody status and release dates.
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VI. The Challenged Conditions Are Not Arbitrary or Capricious. Count Six of the Complaint claims that the challenged conditions are arbitrary or capricious
in violation of the APA. See Compl. ¶ 145. If the conditions are statutorily authorized and comport with the Spending Clause, however, it is unclear how “arbitrary or capricious” scrutiny could otherwise limit the Department’s broad discretion. In any event, “[t]he ‘arbitrary or capricious’ standard of review is a deferential one which presumes that agency actions are valid as long as the decision is supported by a ‘rational basis.’” Pozzie v. U.S. Dep’t of Hous. & Urban Dev., 48 F.3d 1026, 1029 (7th Cir. 1995) (citation omitted); see also Smith v. Office of Civilian Health & Med. Program of Uniformed Servs., 97 F.3d 950, 955 (7th Cir. 1996) (standard is “highly deferential, monitoring only for glaring mistakes-obvious wrongness”). The Supreme Court directs a “narrow standard of review” under which “a court is not to substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009) (citation omitted).
Here, the City’s claim fails because “the agency’s reasons for” imposing the challenged conditions “were entirely rational.” Id. at 517. The imposition of the challenged conditions is understandable as a result of a May 2016 report by the Department’s Office of Inspector General (“OIG”) finding deteriorating local cooperation with “efforts to remove undocumented criminal aliens from the United States.” RJN Ex. H (OIG Memorandum) at 1-2 n.1. The 2016 OIG report advised that “the information we have learned to date during our recent work about the present matter differs significantly from what OIG personnel found nearly 10 years ago” in a 2007 audit when federal immigration authorities had back then “commented favorably to the OIG with respect to cooperation and information flow they received from the seven selected jurisdictions” that were examined. Id. The OIG report focused on Chicago, among other jurisdictions, in reaching its conclusions about the changed state of affairs in 2016. See id. at 5-6.
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In the FY 2016 grant cycle, the Department under the prior Administration introduced a requirement to certify compliance with Section 1373. See Dkt. No. 1-1 (discussing “Special Condition #52 of the FY 2016 Byrne JAG grant received by the City of Chicago” and pertinent guidance issued by the Department in July 2016 and October 2016).
For the FY 2017 cycle, the Department maintained the compliance condition and added the notice and access conditions, and publicly offered a sound explanation for all three conditions. The Department’s July 25, 2017 “Backgrounder on Grant Requirements,” attached to the City’s Complaint, states the conditions have a “goal of increasing information sharing between federal, state, and local law enforcement” so that “federal immigration authorities have the information they need to enforce the law and keep our communities safe.” Dkt. No. 1-3. The Backgrounder notes that some jurisdictions have “refus[ed] to cooperate with federal immigration authorities in information sharing about illegal aliens who commit crimes,” and states that the conditions will “prevent the counterproductive use of federal funds for policies that frustrate federal immigration enforcement.” Id. The three conditions are “common-sense measures,” id., and “even in the absence of evidence, the agency’s predictive judgment (which merits deference) makes entire sense” as “an exercise in logic rather than clairvoyance.” Fox Television, 556 U.S. at 521.
Immigration enforcement undoubtedly relates to criminal justice. As discussed above, see supra at 10-11, numerous federal statutes expressly tie these two subjects together—most centrally inasmuch as a conviction for any of a wide array of criminal offenses renders an alien removable from this country, see 8 U.S.C. § 1227(a)(2), and thus no longer present here with the potential to re-offend. Accordingly, a July 25, 2017 press release by the Attorney General, accompanying the Backgrounder and also attached to the City’s Complaint, stated opposition to policies that “protect illegal aliens who have committed crimes,” and an intent to encourage jurisdictions “to change their policies and partner with federal law enforcement to remove criminals.” Dkt. No. 1-2.
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The conditions thus rationally promote interests in “maintain[ing] liaison” among tiers of government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and comport with the intergovernmental cooperation that Congress contemplates in immigration enforcement. See, e.g., 8 U.S.C. §§ 1226(d), 1357(g), 1373; Arizona, 567 U.S. at 411-12 (“Consultation between federal and state officials is an important feature of the immigration system” and Congress “has encouraged the sharing of information about possible immigration violations.”). VII. The City’s Notice-and-Comment Claim Fails.
Count Six additionally alleges the Department violated the APA by not following noticeand-comment rulemaking procedures before imposing the challenged grant conditions. See Compl. ¶ 144. But the APA expressly exempts from such procedures any “matter relating to . . . grants.” 5 U.S.C. § 553(a)(2). Where Section 553(a)(2) applies, the notice-and-comment rulemaking requirement “has no application.” Lincoln v. Vigil, 508 U.S. 182, 196 (1993).
“The exception for public grants includes all federally supported . . . grants-in-aid programs under which the federal government makes payment to state and local governments.” Sierra Club v. Atlanta Reg’l Comm’n, 255 F. Supp. 2d 1319, 1345 (N. D. Ga. 2002). For example, where challenged regulations concerned “the timing and number of public hearings to be held before building a federal [grant-in]-aid highway,” the D.C. Circuit accepted the agency’s view of those regulations “as relating to grants, and therefore within the . . . exemption from notice and comment rulemaking.” Nat’l Wildlife Fed’n v. Snow, 561 F.2d 227, 229 (D.C. Cir. 1976). Here, too, imposing the challenged grant conditions does not require notice-and-comment rulemaking. VIII. The City’s Paperwork Reduction Act Claim Fails.
Count Seven of the Complaint alleges violations of the Paperwork Reduction Act (“PRA”) in connection with the FY 2017 Certification of Compliance with 8 U.S.C. § 1373 that is part of the FY 2017 Byrne JAG solicitation. See Compl. ¶¶ 147-155. Congress enacted the PRA to
23

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“control the amount of paperwork the federal government can require of private businesses, educational institutions, federal contractors, state and local governments and individuals.” Alegent Health-Immanuel Med. Ctr. v. Sebelius, 34 F. Supp. 3d 160, 170 (D.D.C. 2014).
The City asserts that the Certification of Compliance, which the City identifies as pages 37-38 of Exhibit D to the Complaint, is a “collection of information” within the meaning of the PRA and implementing regulations, for which the Department was required first to publish a 60day notice in the Federal Register. See Compl. ¶¶ 149-151. The City also argues that the Certification displays no OMB control number as contemplated by the PRA. See id. ¶ 154. On these grounds, the City contends it is not required to submit the Certification and that the City’s failure to do so cannot be a basis for denying FY 2017 Byrne JAG funds to the City. See id. ¶ 155.
As an initial point, the City’s claim fails because “federal courts that have addressed the PRA have confirmed what the plain language of the statute already makes clear: the PRA may be raised as a defense to an agency action, but does not create a private cause of action.” Alegent, 34 F. Supp. 3d at 170 (citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999); Tozzi v. EPA, 148 F. Supp. 2d 35, 43 (D.D.C. 2001)). The PRA states that “[t]he protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.” 44 U.S.C. § 3512(b). The City, by contrast, impermissibly uses the PRA as “a sword to persuade the Court to find the [Department] in violation of the PRA.” Alegent, 34 F. Supp. 3d at 170. The City does not rescue its PRA theory by framing its claim under the APA, because the APA provides no relief where another statute precludes judicial review, as the PRA does here. See 5 U.S.C. § 701(a)(1).
Moreover, the City is incorrect in alleging that the Department failed to post a Federal Register notice. This theory reflects the City’s misunderstanding of the process under which the
24

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Department issued the FY 2017 Byrne JAG solicitation. OMB guidance allows agencies to comply with the PRA by submitting a “generic Information Collection Request” that secures OMB “approval of a plan for conducting more than one information collection.” RJN Ex. I (OMB Memorandum on Generic Clearances under the PRA) at 2. Under that authority, the Department issued the FY 2017 Byrne JAG solicitation, including the Certification, based on updating an OMB-approved template solicitation for which notice was given in the Federal Register. See RJN Ex. J (Notice of OMB Action); RJN Ex. K (OMB Information Collection Request Listing).
Additionally, the FY 2017 Byrne JAG solicitation does “display a valid [OMB] control number,” 44 U.S.C. § 3512, on the first page in the top right corner near the title of the document. See Dkt. No. 1-4 at 1 (stamped “OMB No. 1121-0329” and “Approval Expires 12/31/2018”). This manner of “display” is consistent with regulation, which does not require stamping the OMB control number on each page of the solicitation. See 5 C.F.R. § 1320.3(f)(1)-(2). The City’s theory apparently rests on construing the Certification as a document separate from the solicitation rather than a part of the solicitation, and arguing that the Certification pages do not themselves bear the OMB control number. That construction is wrong. Indeed, the City’s own submission to the Court treated the FY 2017 Byrne JAG solicitation, including the Certification, as a single document. See Dkt. No. 1-4. This Certification exists only as part of the solicitation’s process for FY 2017 Byrne JAG awards, and the solicitation’s table of contents shows that the Certification is part of the solicitation. See id. at 3-4. The City’s PRA claim thus fails as a matter of law.
CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court dismiss the Complaint in its entirety.
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DATED: January 3, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
JOHN R. TYLER Assistant Director
/s/ Arjun Garg ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

26

 
 Case: 1:17-cv-05720 Document #: 152 Filed: 01/31/18 Page 1 of 34 PageID #:2325

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

COMBINED OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF PLAINTIFF’S
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Case: 1:17-cv-05720 Document #: 152 Filed: 01/31/18 Page 2 of 34 PageID #:2326
TABLE OF CONTENTS
Page ARGUMENT..................................................................................................................................................... 2 I. DISMISSAL SHOULD BE DENIED AND SUMMARY JUDGMENT ENTERED
ON THE GROUNDS THAT THE CONDITIONS ARE UNLAWFUL AND THAT CHICAGO COMPLIES WITH § 1373 ............................................................................. 2 A. Standard Of Review ............................................................................................................... 2 B. The Attorney General’s Decision To Impose The Notice, Access, And
Compliance Conditions Is Final ........................................................................................... 3 C. All Three Conditions Are Ultra Vires And Violate Separation Of Powers ................... 4
1. The notice and access conditions are ultra vires .................................................. 4 2. The compliance condition is ultra vires ................................................................. 6 3. The Court should enter a permanent nationwide injunction ............................. 9 D. Chicago Is Entitled To A Declaratory Judgment That It Complies With Section 1373 ..........................................................................................................................10 1. A declaratory judgment is proper in this case.....................................................11 2. Chicago complies with section 1373 ....................................................................13 II. THE COURT SHOULD DENY DISMISSAL OF CHICAGO’S REMAINING CLAIMS ..............................................................................................................................................18 A. Standard Of Review .............................................................................................................18 B. The Conditions Fail To Satisfy The Spending Clause’s Requirements ........................18 1. Each condition is ambiguous and fails to give a prospective Byrne JAG
recipient sufficient notice of what would be required of it...............................18 2. None of the conditions is germane to the purposes of the program..............20 3. The conditions are coercive...................................................................................22 4. The notice and access conditions would require the City to violate the
Fourth Amendment................................................................................................23 C. The Attorney General Acted Arbitrarily And Capriciously In Adopting The
Conditions .............................................................................................................................24 CONCLUSION ............................................................................................................................................... 25
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TABLE OF AUTHORITIES

CASES

Page(s)

Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987)..............................................................................................................................9

Arizona v. United States, 567 U.S. 387 (2012)............................................................................................................................21

Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006)............................................................................................................................19

Branch v. Smith, 538 U.S. 254 (2003)..............................................................................................................................8

Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003).............................................................................................................19

Ciarpaglini v. Norwood, 817 F.3d 541 (7th Cir. 2016).............................................................................................................23

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)..............................................................................................................................7

City of Arlington v. FCC, 133 S. Ct. 1863 (2013)..........................................................................................................................4

City of Los Angeles v. McLaughlin, 865 F.2d 1084 (9th Cir. 1989).............................................................................................................5

City of Philadelphia v. Sessions, 2017 WL 5489476 (E.D. Pa. Nov. 15, 2017) (appeal filed Jan. 18, 2018)...................4, 7, 21, 22

City of Seattle v. Trump, 2017 WL 4700144 (W.D. Wash. Oct. 19, 2017)............................................................................12

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)...............................................................................................................9

County of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017).................................................................................... 12, 22

FCC v. Fox Television Stations, 556 U.S. 502 (2009)............................................................................................................................25

FTC v. Standard Oil Co. of California, 449 U.S. 232 (1980)..............................................................................................................................4

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Case: 1:17-cv-05720 Document #: 152 Filed: 01/31/18 Page 4 of 34 PageID #:2328
Gonzales v. Oregon, 546 U.S. 243 (2006)..............................................................................................................................7
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ..........................................................................................................10
Gregory v. Ashcroft, 501 U.S. 452 (1991)..............................................................................................................................7
Illinois ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935 (7th Cir. 1983).............................................................................................................11
In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013) ............................................................................................................ 4
Klinger v. Conan Doyle Estate, 988 F. Supp. 2d 879 (N.D. Ill. 2013), aff’d, 755 F.3d 496 (7th Cir. 2014) .................................... 2
Kreg Therapeutics, Inc v. VitalGo, Inc., 2013 WL 1286681 (N.D. Ill. Mar. 28, 2013) ..................................................................................10
Louisana Public Service Commission v. FCC, 476 U.S. 355 (1986)..............................................................................................................................4
Marshall County Health Care Authority v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................................................................................................... 2
Medical Assurance Co. v. Hellman, 610 F.3d 371 (7th Cir. 2010).............................................................................................................13
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).............................................................................................................10
Meridian Mutual Insurance Co. v. Meridian Insurance Group, Inc., 128 F.3d 1111 (7th Cir. 1997)...........................................................................................................10
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)..............................................................................................................................9
Motor Vehicle Manufacturers Ass’n of U.S. v. State Farm Mutual Auto. Insurance Co., 463 U.S. 29 (1983)..............................................................................................................................24
NFIB v. Sebelius, 567 U.S. 519 (2012)............................................................................................................................19
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005)............................................................................................................................25
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Case: 1:17-cv-05720 Document #: 152 Filed: 01/31/18 Page 5 of 34 PageID #:2329
New York v. United States, 505 U.S. 144 (1992)................................................................................................................. 8, 10, 15
Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981) ................................................................................................................................19
Pioneer Trail Wind Farm, LLC v. FERC, 798 F.3d 603 (7th Cir. 2015).............................................................................................................24
Printz v. United States, 521 U.S. 898 (1997)............................................................................................................................15
Rempfer v. Sharfstein, 583 F.3d 860 (D.C. Cir. 2009) ............................................................................................................ 2
Reno v. Condon, 528 U.S. 141 (2000)............................................................................................................................15
Ruisard v. Village of Glen Ellyn, 939 N.E.2d 1048 (Ill. App. Ct. 2010) ..............................................................................................14
Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017).............................................................................................................16
Schurz Communications v. FCC, 982 F.2d 1043 (7th Cir. 1992).................................................................................................... 24, 25
Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998).............................................................................................................23
Shadid v. Sims, 40 N.E.3d 347 (Ill. App. Ct. 2015) ..................................................................................................14
South Dakota v. Dole, 483 U.S. 203 (1987).........................................................................................................20, 21, 22, 23
Steinle v. City & County of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017).............................................................................................16
Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718 (Ct. App. 2009)...............................................................................................18
Super Products Corp. v. D P Way Corp., 546 F.2d 748 (7th Cir. 1976).............................................................................................................12
Train v. City of New York, 420 U.S. 35 (1975) ................................................................................................................................ 4
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Case: 1:17-cv-05720 Document #: 152 Filed: 01/31/18 Page 6 of 34 PageID #:2330
Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015).............................................................................................................16
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016)..........................................................................................................................3
Village of Sugar Grove v. FDIC, 2011 WL 3876935 (N.D. Ill. Sept. 1, 2011)....................................................................................18
Ward v. Rock Against Racism, 491 U.S. 781 (1989)............................................................................................................................14
Western Illinois Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)...............................................................................................................3
Whitman v. American Trucking Ass’n, 531 U.S. 457 (2001)..............................................................................................................................6
Willis v. City of Chicago, 999 F.2d 284 (7th Cir. 1993).............................................................................................................23
Wisconsin v. Ho-Chunk Nation, 512 F.3d 921 (7th Cir. 2008).............................................................................................................12
Zero Zone, Inc. v. U.S. Department of Energy, 832 F.3d 654 (7th Cir. 2016).............................................................................................................24
CONSTITUTIONAL PROVISIONS, STATUTES, RULES, AND REGULATIONS
U.S. Const. art. I, § 8, cl. 1 ................................................................................................................................ 4
U.S. Const. amend. IV ....................................................................................................................................23
U.S. Const. amend. X ........................................................................................................................................ 8
5 U.S.C. § 704 ....................................................................................................................................................... 3 § 706 .................................................................................................................................................2, 24 § 1501 ...................................................................................................................................................25
8 U.S.C. § 1182(a)(9)(B)(ii)................................................................................................................................17 § 1226 ...................................................................................................................................................17 § 1281(b) ..............................................................................................................................................17 § 1357(g)(10) .......................................................................................................................................16 § 1367(a)(2)..........................................................................................................................................17 § 1373 .............................................................................................................................................passim
20 U.S.C. § 1681(a) ..........................................................................................................................................25
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29 U.S.C. § 794(a) ............................................................................................................................................25 34 U.S.C.
§ 10102(a)(6)......................................................................................................................................5, 6 § 10152(a)(1)....................................................................................................................................5, 21 § 10153 ......................................................................................................................................... 5, 6, 7 § 10156(d)(2)(A) ................................................................................................................................... 5 § 10157(b) .............................................................................................................................................. 5 § 10228(c) ............................................................................................................................................25 § 10446(e)(3)..........................................................................................................................................4 § 11181 et seq........................................................................................................................................25 § 12291(b)(13).....................................................................................................................................25 § 20110(b)............................................................................................................................................25 42 U.S.C. § 2000d.............................................................................................................................................6, 25 § 4332 ...................................................................................................................................................25 § 4604(c) ..............................................................................................................................................25 § 6102 ...............................................................................................................................................6, 25 54 U.S.C. § 306108...............................................................................................................................................25 § 312502(b)(1).....................................................................................................................................25 Fed. R. Civ. P. 41 .............................................................................................................................................18 Fed. R. Civ. P. 56 ............................................................................................................................................... 3 2 C.F.R. § 200.203..............................................................................................................................................4 Municipal Code of Chicago, Ill. § 2-173-020 ........................................................................................ 13, 18 Municipal Code of Chicago, Ill. § 2-173-030 ...............................................................................................13 Municipal Code of Chicago, Ill. § 2-173-042 ...............................................................................................16
OTHER AUTHORITIES Executive Order No. 13,768 ................................................................................................................... 12, 22 H.R. Rep. No. 109-233 (2005) ...................................................................................................................5, 20 Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015) .............................................................................. 7
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Chicago filed this lawsuit to preserve its access to critical law enforcement funding and to end the Attorney General’s assault on longstanding welcoming policies, such as those embodied in Chicago’s Welcoming City Ordinance (“WCO”), which law enforcement experts around the country agree are essential to public safety. Since Chicago filed suit, the assault on Chicago’s welcoming policies has only escalated. The Attorney General responded to this Court’s preliminary injunction against the notice and access conditions by refusing to issue Byrne JAG awards to any jurisdiction throughout the country. And he has sought to expand the reach of § 1373 to target the same policies this Court’s injunction had protected—effectively substituting § 1373 for the enjoined notice condition. In his reading, § 1373 now requires not only that Chicago avoid restricting its employees from sharing citizenship and immigration status information with the federal government, but also that Chicago not restrict sharing any information concerning a detainee that might conceivably assist federal immigration officials in carrying out their duties. And beyond the negative restrictions imposed by the statute, the Attorney General claims that § 1373 mandates that Chicago affirmatively instruct its employees that they are free to cooperate with federal immigration officials by sharing such information. He has also encumbered millions of dollars beyond the Byrne JAG program, refusing to release a COPS Hiring Program grant already awarded to Chicago to hire two dozen police officers until the Attorney General is satisfied that Chicago complies with his everchanging interpretation of § 1373.
The Attorney General’s campaign against Chicago continues to pose the same untenable choices: submit, cede sovereign control over City officers, and damage its residents’ trust; or refuse, and not only lose critical Byrne JAG (and other) funds but also risk potential and costly enforcement litigation. It is thus critically important to resolve this controversy, and expeditiously.
To bring this suit to a speedy resolution—and to expedite the release of Byrne JAG (and COPS) funding—Chicago cross-moves for summary judgment on the invalidity of the new
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conditions and Chicago’s compliance with § 1373. The legality of the conditions is a purely legal question, and one that this Court has already answered. And Chicago’s compliance with § 1373 for purposes of this litigation can be determined based on the City’s ordinances and Chicago Police Department (“CPD”) directives, which are already before the Court. Given the limited scope of relevant facts, it does not serve the interests of justice to delay final judgment months or years when this dispute can be resolved now.
Chicago thus requests summary judgment, and denial of dismissal, on two grounds: First, that the notice, access, and compliance conditions are unlawful; and second, that Chicago complies with § 1373. Chicago also seeks denial of the motion to dismiss the remaining claims but submits that granting summary judgment to the City will make it unnecessary to address those claims.
ARGUMENT I. DISMISSAL SHOULD BE DENIED AND SUMMARY JUDGMENT ENTERED
ON THE GROUNDS THAT THE CONDITIONS ARE UNLAWFUL AND THAT CHICAGO COMPLIES WITH § 1373 A. Standard Of Review Challenges to agency action “not in accordance with law,” 5 U.S.C. § 706(2), present only “a question of law” concerning “the legal conclusion to be drawn about the agency action.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009). Thus, in the agency review context, there is often “no real distinction . . . between the question presented on a 12(b)(6) motion and a motion for summary judgment.” Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). A motion for summary judgment arguing that agency action was ultra vires or otherwise unlawful requires no factfinding, but simply asks whether the agency action was permissible under existing law. Similarly, summary judgment on a declaratory-judgment claim is appropriate where “‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Klinger v. Conan Doyle Estate, 988 F. Supp. 2d 879, 884-885 (N.D. Ill. 2013), aff’d, 755 F.3d 496
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(7th Cir. 2014). A motion for summary judgment may be filed “at any time.” Fed. R. Civ. P. 56(b). B. The Attorney General’s Decision To Impose The Notice, Access, And Compliance Conditions Is Final Despite having appealed this Court’s preliminary injunction and asked the Seventh Circuit to
uphold the notice and access conditions, the Attorney General now argues (at 2-4) that his decision is actually unreviewable because DOJ has not taken any “final agency action.” That is incorrect.
For agency action to be “final,” it must both “‘mark the consummation of the agency’s decisionmaking process’” and “‘be [an action] by which rights or obligations have been determined, or from which legal consequences will flow.’” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016); see 5 U.S.C. § 704. “‘The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.’” W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7th Cir. 1998).
The Attorney General’s decision to impose the three conditions on Byrne JAG funds is both unequivocal and triggers important legal and practical consequences. It is therefore reviewable. The FY2017 Byrne JAG solicitation states definitively that FY2017 awards “will include” the three conditions. SUMF ¶¶ 22. And a sworn declaration the Attorney General submitted to this Court confirms that every FY2017 award will contain conditions identical to those in the Binghamton and Greenville awards, which include all three conditions. SUMF ¶ 27; see also Dkt. 32 at 21 (asserting that those awards contain “the final language of th[e] conditions” for all grantees (emphasis added)). The Attorney General’s assertion now that “an award to the City might not contain at least some of the challenged conditions” is therefore disingenuous. Dkt. 139 at 3 (emphasis added).
Moreover, the conditions set the substantive terms under which grant recipients, like Chicago, must operate—forcing Chicago either to forfeit funding it has received for over a decade or agree to conditions that would require repealing the WCO. And the conditions’ announcement effectively dictated whether state and local governments could or should even apply for funds at
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all—as DOJ recognized by “strongly encourag[ing] prospective applicants to review” the conditions “prior to submitting an application.” SUMF ¶ 22; see also 2 C.F.R. § 200.203 (grant notification must “includ[e] sufficient information to help an applicant make an informed decision about whether to submit an application” (emphasis added)). By any measure, then, the decision to impose the conditions is a “‘definitive’” agency statement with a “‘direct and immediate effect on the day-to-day business’ of the complaining part[y].” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239 (1980). As Judge Baylson concluded, the decision is therefore “final and ripe” for judicial review. See City of Philadelphia v. Sessions, 2017 WL 5489476, at *25 (E.D. Pa. Nov. 15, 2017) (appeal filed Jan. 18, 2018).
C. All Three Conditions Are Ultra Vires And Violate Separation Of Powers No statutory authority permits the Attorney General to supplement the conditions Congress required Byrne JAG recipients to meet. That lack of authority is dispositive: an agency “literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). And “when [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013). Because each condition is ultra vires and violates separation of powers, the Court should deny the Attorney General’s motion to dismiss Counts One and Two, and enter summary judgment for Chicago on those counts.1
1. The notice and access conditions are ultra vires The Attorney General has no authority to impose substantive policy conditions of his own creation on Byrne JAG grantees. Unlike statutes that authorize the Attorney General to “impose reasonable conditions on grant awards,” e.g., 34 U.S.C. § 10446(e)(3), the Byrne JAG statute creates a
1 The ultra vires imposition of spending conditions by the Executive necessarily violates separation of powers principles. The Constitution gives Congress, not the Executive, the Spending power. U.S. Const. art. I, § 8, cl. 1. Executive officials therefore cannot unilaterally “refuse to spend . . . funds” that have been appropriated by Congress “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also Train v. City of New York, 420 U.S. 35, 44 (1975).
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formula grant, mandating that the Attorney General “shall allocate” funds to local governments, id. § 10156(d)(2)(A), “in accordance with” a formula based on population and crime statistics, id. § 10152(a)(1). Formula grants “are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). The Byrne JAG statute accordingly gives the Attorney General only limited authority, such as the power to specify the “form” of the application, 34 U.S.C. § 10153, and to “reserve not more than 5 percent” of the program’s total funds to combat “extraordinary increases in crime” or “mitigate significant programmatic harm,” id. § 10157(b) (emphasis added). Congress adopted this formula-driven, locally responsive approach to achieve an overarching objective: to “give State and local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). The Attorney General’s claimed conditioning authority conflicts with Congress’s express instructions and goals.
The Attorney General does not disagree but once again “appears to concede” that no provision of the Byrne JAG statute authorizes the notice and access conditions. See Dkt. 78 at 13. Instead, he claims that the conditions are authorized by a general provision contained in a different subchapter concerning the “duties and functions” of the Assistant Attorney General (“AAG”)— 34 U.S.C. § 10102(a)(6). This court rejected the Attorney General’s misplaced reliance on that provision when it granted preliminary injunctive relief; it should now grant permanent relief.2
Section 10102(a)(6) does not independently vest any authority in the AAG. That section authorizes the AAG to “exercise such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation of the Attorney General, including placing special
2 The only new argument in the motion to dismiss is that the language giving the AAG authority to “plac[e] special conditions on all grants” was added as part of the legislation creating the Byrne JAG program. The source of this language does not change the plain meaning of the statutory text, which the Court has previously construed. Dkt. 78 at 17-18. Nor does it undermine this Court’s conclusions regarding the superfluities the Attorney General’s reading creates. Id. at 14-16.
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conditions on all grants, and determining priority purposes for formula grants.” Its language demonstrates “that any authority of the [AAG] to place special conditions on grants must flow either from the [underlying grant] statute itself or from a delegation of power independently possessed by the Attorney General.” Dkt. 78 at 18.
The Attorney General’s contrary view both “renders superfluous the explicit statutory authority Congress gave . . . to impose conditions on other” grant programs within the same chapter as the Byrne JAG program, id. at 14, and conflicts with the discretion-limiting provisions described above that are in the Byrne JAG statute itself. Interpretative principles and reason alike preclude the notion that Congress would use a minor amendment to an ancillary provision it grouped with clauses describing bureaucratic functions of a sub-cabinet post to confer limitless power to impose conditions on all DOJ grant programs. Congress does not “alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001); see also Dkt. 78 at 17. The notice and access conditions are therefore ultra vires.
2. The compliance condition is ultra vires For these same reasons, § 10102(a)(6) cannot be read to authorize the compliance condition. And the Attorney General is no more persuasive in locating authority for that condition in the Byrne JAG statute’s requirement that applicants certify compliance with “all other applicable federal laws.” 34 U.S.C. § 10153(a)(5)(D). In that provision, Congress did not make the Byrne JAG statute a compliance mechanism for “all Federal laws,” but only “applicable Federal laws.” “Applicable” refers to the laws that Congress itself made applicable to federal grantees—i.e., statutes that by their express terms govern recipients of federal funds. E.g., 42 U.S.C. § 2000d (nondiscrimination condition for “any program or activity receiving Federal financial assistance”); id. § 6102 (same, for age discrimination). Because § 1373 contains no provision authorizing enforcement of its provisions
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through administration of any federal grant program, it is not an “applicable Federal law.”3 The surrounding context of the phrase “all other applicable federal laws” confirms this
interpretation. Section 10153(a)(5)(D) requires applicants to certify compliance “with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added). The statute therefore uses a specific term (“all provisions of this part”) followed by a residual term (“all other applicable Federal laws.”). When Congress uses this formulation, it intends the residual term to be limited by the qualities of the specific term. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (term “any other class of work” should be “controlled and defined by reference to” the preceding terms, “seamen” and “railroad employees”). Here, the specific term imposes requirements only on federal grantees; it follows that the residual term—“other applicable Federal laws”—must similarly be limited to federal statutes that expressly apply to federal grantees.
This Court previously agreed that Chicago’s construction of “other applicable laws” is “plausible,” but ultimately read the provision to refer to all federal laws that might govern Chicago. Dkt. 78 at 21. For the reasons above, Chicago respectfully urges the Court to reconsider that conclusion. Moreover, because the broader reading of “applicable” raises serious federalism concerns, this Court should adopt Chicago’s narrower reading, which is, after all, “plausible.” See also Philadelphia, 2017 WL 5489476, at *29 (describing question as a “close call”). When Congress “intends to alter the usual constitutional balance between the States and the Federal Government,” it must make its intent to do so “unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991) (quotation marks omitted). This need for clear authority is most essential where federal policy threatens to interfere with “the States’ police power.” Gonzales v.
3 Indeed, Congress has repeatedly declined to enact legislation to do just that. E.g., Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2(b)(2) (2015). And as discussed further below, see infra p. 25, before imposing the § 1373 compliance condition, DOJ itself limited Byrne JAG certification to federal laws that Congress expressly authorized to be enforced as a condition on federal funds.
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Oregon, 546 U.S. 243, 274 (2006). Because “applicable” can bear at least two plausible readings, Congress did not express sufficiently clear intent to extend that provision beyond statutes expressly tied to federal funds.
And beyond the import of “applicable,” there is another reason that § 1373 does not qualify as an “applicable Federal law”: § 1373 violates Tenth Amendment anti-commandeering principles and is therefore facially unconstitutional. Cf. Branch v. Smith, 538 U.S. 254, 281 (2003) (unconstitutional state law “a legal nullity” and so could not be applied under the phrase “as state law requires”). This Court previously recognized that § 1373 comes at least close to transgressing the Tenth Amendment because the statute “may practically limit the ability of state and local governments to decline to administer or enforce a federal regulatory program” and “may effectively thwart policymakers’ ability to extricate their state or municipality from involvement in a federal program.” Dkt. 78 at 34-35. This Court nonetheless concluded that § 1373 was not unconstitutional because existing precedent establishes that only “affirmative demands on states constitute a violation of the Tenth Amendment” and “[r]ead literally, Section 1373 imposes no affirmative obligations on local governments.” Id.4
Importantly, however, the Supreme Court has also recognized that the federal government may not limit a city or state’s power to decline participation in a federal program, as § 1373 does. In New York v. United States, the Court rejected part of a federal program under which the States lacked a “critical alternative” to participation: they could “not decline to administer the federal program.” 505 U.S. 144, 177 (1992). Section 1373 intrudes on local sovereignty in precisely the same way: governments must choose either to (1) assist in federal immigration enforcement or (2) run police departments without controlling their employees’ communications with ICE. It thus forecloses New 4 As explained in more detail below, see infra p. 11, the Attorney General has now expanded his interpretation of § 1373 to impose affirmative obligations on local governments. That new interpretation would result in unconstitutional commandeering.
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York’s “critical alternative”: the option of non-participation in the federal program. See also Conant v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring) (“[P]reventing the state from repealing an existing law is no different from forcing it to pass a new one[.]”). Because § 1373 violates anti-commandeering principles, it cannot constitute an “applicable Federal law.”
3. The Court should enter a permanent nationwide injunction Because the challenged conditions are unlawful, the Court should permanently enjoin the Attorney General from imposing them on Byrne JAG grantees. Under Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-157 (2010), the Court may issue permanent injunctive relief if the moving party demonstrates: (1) that it has suffered an irreparable injury; (2) that remedies available at law . . . are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. This is “essentially” the same standard as for a preliminary injunction, except a preliminary injunction requires “a likelihood of success on the merits rather than actual success.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987). Thus, in entering the preliminary injunction, this Court has “essentially” considered these factors and resolved them in Chicago’s favor. That preliminary determination is correct. As shown above, Chicago has established actual success on the merits—all three conditions are ultra vires. The remaining Monsanto factors are also satisfied. The material facts have not changed. First, absent permanent injunctive relief, the City remains subject to an untenable choice: forgo necessary Byrne JAG funds or accede to the Attorney General’s conditions by repealing the WCO and risking the trust of the City’s immigrant communities. See SUMF ¶ 11. A forced choice between compliance with unlawful conditions on the one hand and violating the law on the other constitutes irreparable harm. See Dkt. 78 at 37. Second, only an injunction can prevent the loss of trust between the City and its residents that would result from its compliance with the Attorney General’s conditions. As the Court has
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explained, once the City’s reputation as a “Welcoming City” is lost, essential trust with immigrant communities “cannot be repaired through an award of money damages.” Dkt. 78 at 37.5
Third, the balance of equities heavily favors granting a permanent injunction. Chicago’s residents have a vital interest in ensuring the safety of their city. They have made a reasoned decision, through their elected leaders, that their interest is best served by promoting strong relations between local law enforcement and immigrant communities. The City also has an abiding interest in protecting itself against unwanted federal pressure. See New York, 505 U.S. at 181 (“‘federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”). And “enforcement of an unconstitutional law is always contrary to the public interest.” See Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). The Attorney General can make no comparable showing of harm. Cf. Dkt. 78 at 37-38.
Finally, permanent injunctive relief, like the preliminary relief, should be nationwide in scope. The City challenges a single, integrated federal policy promulgated under a uniform, nationwide formula grant program, and “the Attorney General’s authority, or lack thereof, will not vary by jurisdiction.” Dkt. 98 at 5. Thus, no reason exists “to think that the legal issues present in this case are restricted to Chicago,” Dkt. 78 at 41, and the Attorney General does not even claim they are.
D. Chicago Is Entitled To A Declaratory Judgment That It Complies With Section 1373
The Attorney General has combined a growing drumbeat of threats to enforce § 1373 against Chicago with vague and shifting interpretations of the statute. The objective of these threats is clear from a speech he delivered shortly after Chicago filed this lawsuit: “requir[ing]” Chicago to
5 The requirements of irreparable harm and absence of an adequate remedy at law “tend to merge” such that an injury is “irreparable when it is of such a nature that the injured party cannot be compensated in damages or when damages cannot be measured by any pecuniary standard.” Kreg Therapeutics, Inc v. VitalGo, Inc., 2013 WL 1286681, at *18 (N.D. Ill. Mar. 28, 2013); see also Meridian Mut. Ins. Co. v. Meridian Ins. Grp., Inc., 128 F.3d 1111, 1120 (7th Cir. 1997).
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“reorder[] [its] law enforcement practice,” he declared, is “exactly the point!” SUMF ¶ 26. Chicago now seeks a declaration that it complies with § 1373 to lift the legal and budgetary uncertainty that the Attorney General’s threats have caused.
1. A declaratory judgment is proper in this case The Attorney General does not dispute that this case presents a live controversy over the City’s compliance with § 1373. Nor does he question this Court’s power to rule on Chicago’s claim for declaratory relief. Rather, he argues only that the Court should exercise “discretion” not to do so. Dkt. 139 at 17-19. The Court should reject that request. The purpose of a declaratory judgment is to settle legal issues “to avoid debilitating legal uncertainty.” Ill. ex rel. Barra v. Archer Daniels Midland Co., 704 F.2d 935, 940-941 (7th Cir. 1983). The need for such relief here is acute, and growing. Prior to Chicago’s suit, the Attorney General demanded that Chicago’s “chief legal officer” certify “under penalty of perjury” and “criminal prosecution” that the City complies with § 1373, SUMF ¶ 22. That demand alone made declaratory relief necessary, given § 1373’s inherent ambiguity. See infra p. 19. And since then, the Attorney General has refused to commit to a single interpretation of § 1373, making it impossible for Chicago to definitively answer that demand without the aid of a declaratory judgment. For example, the Attorney General has alternately argued both that § 1373 imposes no affirmative requirements, Dkt. 76 at 59, and that it does impose affirmative demands, see Dkt. 139 at 14. And his interpretation of “information regarding citizenship or immigration status” has evolved over the course of this litigation to encompass a detainee’s whereabouts, custody status, and release dates. See Dkt. 139 at 19-20; Dkt. 103-1, see also infra p. 16-17. Chicago is entitled to declaratory relief to remove the deep uncertainty that these shifting legal positions have created. The Attorney General makes three arguments why this court should exercise its “discretion” to withhold declaratory relief. Each misses the mark. First, contrary to the Attorney General’s
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suggestion (at 18), the dispute in this case is not about the legality of past conduct. The dispute is whether Chicago’s ongoing conduct complies with § 1373. Courts regularly issue declaratory judgments regarding the legal implications of ongoing behavior. See, e.g., Super Prods. Corp. v. D P Way Corp., 546 F.2d 748 (7th Cir. 1976); Cty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201, 1218 (N.D. Cal. 2017); City of Seattle v. Trump, 2017 WL 4700144, at *7 (W.D. Wash. Oct. 19, 2017).
Second, the Attorney General contends that declaratory relief would preempt the DOJ’s ongoing assessment regarding Chicago’s § 1373 compliance. But that argument ignores the Attorney General’s demand that the City certify compliance now under threat of future criminal prosecution or civil litigation. What’s more, the President has ordered the Attorney General to take “appropriate enforcement action against any entity that violates [§] 1373,” Executive Order No. 13,768, § 9(a), which the Attorney General has interpreted to mean filing civil preemption actions against jurisdictions he believes violate § 1373, see Request for Judicial Notice (“RJN”) Ex. K at 2, 8, 22. The City needs declaratory relief precisely because DOJ’s ongoing “administrative process” is a moving target that involves a continually evolving understanding of what DOJ believes is required under § 1373 and because the threat Chicago faces is not limited to that process but extends as well to potential civil preemption litigation.
Finally, the Attorney General is wrong to assert that Chicago has failed to “identify an underlying cause of action” for declaratory relief. Dkt. 139 at 18. It is the “‘presumed suit by the declaratory judgment defendant’”—not the plaintiff—that is litigated in a declaratory judgment action. See Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 935 (7th Cir. 2008) (emphasis added). Both in this case, Dkt. 139 at 18, and in other parallel suits, RJN Ex. K, the Attorney General has made clear that he could bring civil preemption actions against jurisdictions to enforce § 1373. It is this “Damoclean threat of impending litigation which a harassing adversary might brandish” that “[t]he remedy made
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available by the Declaratory Judgment Act” was designed to relieve. Med. Assur. Co. v. Hellman, 610 F.3d 371, 377 (7th Cir. 2010).
2. Chicago complies with section 1373 This Court should grant summary judgment on Count Five because Chicago complies with § 1373. Chicago does not prevent or restrict its police officers from sharing citizenship or immigration status information with federal officials, exchanging it with other governmental entities, or otherwise maintaining it.6 Section 1373 requires nothing more. To the extent § 1373 is read to require Chicago to affirmatively communicate that non-restriction internally (which it does not), Chicago has done that too. Chicago is therefore entitled to a declaration of compliance.
a. Chicago has no policy preventing its police officers from sharing immigration-status information with federal officials or exchanging that information with other governmental entities
Three provisions of the WCO, and one CPD Special Order implementing the WCO, reveal Chicago’s policies concerning sharing citizenship or immigration-status information with federal immigration officials or other governmental entities.7
WCO Sections 020 and 030: Section 020 of the WCO prohibits any City “agent or agency” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by . . . federal regulation.” Municipal Code of Chicago, Ill. (“MCC”) § 2-173-020. Section 030 of the WCO prohibits any “agent or agency” from “disclos[ing] information regarding the citizenship or immigration status of any person” in the absence of legal process or written consent, “[e]xcept as otherwise provided under applicable federal law.” MCC § 2-173-030.
6 The Attorney General admits that the compliance condition is “limited ‘to the “program or activity” that is funded (in whole or in part)’” by the Byrne JAG award. Dkt. 139 at 10 n.2. Proof of compliance by any City agency—other than CPD—is therefore beyond the scope of the parties’ dispute. 7 There are no other relevant ordinances or policies. SUMF ¶ 10.
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Neither provision violates § 1373. Section 020 does not govern intergovernmental information sharing at all. Rather, it restricts officers from “investigat[ing]” the status of “any person”—i.e., from questioning suspects, witnesses, crime victims, or other private individuals about immigration status—which is a limit that DOJ guidance concedes falls outside § 1373. RJN Ex. I at 5 (“[§] 1373 does not impose . . . the affirmative obligation to collect information from private individuals regarding their immigration status.”). And both provisions contain express savings clauses that prevent any conflict with § 1373: Where § 1373 requires that Chicago not “prohibit” or “restrict” sharing immigration-status information, § 1373 triggers the savings clauses and lifts any restriction that would otherwise apply. Thus, as Chicago’s Corporation Counsel has explained, neither provision “prohibit[s] or restrict[s] the sharing of citizenship or immigration status information with other units of government.” SUMF ¶ 34. That definitive construction of City law by the City’s chief legal officer is reasonable, and should be afforded deference. See Shadid v. Sims, 40 N.E.3d 347, 350 (Ill. App. Ct. 2015); Ruisard v. Vill. of Glen Ellyn, 939 N.E.2d 1048, 1061 (Ill. App. Ct. 2010); see also Ward v. Rock Against Racism, 491 U.S. 781, 795-796 (1989).
Although conceding that each WCO provision can be read to not restrict or prohibit intergovernmental information sharing, the Attorney General and DOJ have previously argued that the provisions are ambiguous and that § 1373 therefore requires Chicago to affirmatively instruct City employees that they are free to assist federal immigration officials by sharing citizenship and immigration status information. SUMF ¶¶ 31, 43. That is incorrect. As this Court has explained, “[r]ead literally, Section 1373 imposes no affirmative obligations on local governments.” Dkt. 78 at 34. It “prohibits prohibitions”—nothing more. Id. at 32. That is clear from the text of the statute, which describes only negative obligations: a locality “may not prohibit, or in any way restrict [intergovernmental sharing of certain information].” 8 U.S.C. § 1373(a). And that construction is also compelled by the Tenth Amendment, which counsels against reading a federal statute to
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affirmatively “command the States’ officers . . . to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997); see also Reno v. Condon, 528 U.S. 141, 151 (2000) (federal government may not affirmatively “require state officials to assist in the enforcement of federal statutes regulating private individuals”); Dkt. 78 at 34-35 (although “Section 1373 may implicate the logic underlying the Printz decision,” it is constitutional insofar as it imposes no “affirmative demands”). Both plain text and the canon of constitutional avoidance therefore preclude reading § 1373 to force Chicago to affirmatively grant permission to its police officers to help enforce federal immigration law. See New York, 505 U.S. at 170 (invoking the avoidance canon to reject a statutory construction that “would . . . ‘upset the usual constitutional balance of federal and state powers’”).
In any event, Chicago has fulfilled the affirmative obligation that the Attorney General incorrectly argues § 1373 requires. In October 2017, the Corporation Counsel informed all agency heads that Chicago “does not have a law or policy that prohibits or restricts any Chicago entity or official from sending to, or receiving from, [ICE], information regarding the citizenship or immigration status, lawful or unlawful, of any individual” and that Chicago “does not prohibit or in any way restrict any person or agency from sending to, or requesting or receiving from, [ICE], information regarding the immigration status, lawful or unlawful, of any individual.”8 SUMF ¶ 48. That memorandum attached a letter from Chicago to DOJ containing the Corporation Counsel’s definitive and extensive interpretation of the WCO. Id. Accordingly, neither Section 020 nor Section 030 of the WCO creates any conflict with § 1373.
WCO Section 042 and CPD Special Order S06-14-03: WCO Section 042, which the Attorney General has also challenged (at 19-20), comports with § 1373 as well. Section 042
8 Chicago objected to making this communication at the time, but agreed to do so “in the interest of resolving this issue.” SUMF ¶ 47. Chicago continues to believe the communication requirement constituted unlawful commandeering, for the reasons above. See supra p. 14-15.
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prohibits CPD officers from spending on-duty time “responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date” unless those officers are “acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law.” MCC § 2-173-042(b)(1)(C); see also RJN Ex. F (CPD Special Order S06-14-03, implementing WCO Section 042). Because Section 042 restricts the sharing of “custody status or release date” information only and does not apply to the sharing of anyone’s “citizenship or immigration status,” it does not even implicate § 1373, much less violate it.
The Attorney General nonetheless contends (at 19) that Section 042 violates § 1373 because “information regarding . . . immigration status” includes an individual’s “[c]ustody status and release dates.” But “no plausible reading of ‘information regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented inmate.” Steinle v. City & Cty. of S.F., 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017). Immigration “status” as that term is used in federal immigration law simply refers to the “states or conditions that an alien may possess under the INA.” Saldivar v. Sessions, 877 F.3d 812, 817 (9th Cir. 2017); Tula-Rubio v. Lynch, 787 F.3d 288, 293 (5th Cir. 2015) (similar). It thus covers, e.g., a person’s status as a lawful permanent resident or as an undocumented immigrant, not his or her status as a detainee held by Chicago.
The Attorney General’s principal argument is that because 8 U.S.C. § 1357(g)(10) makes “unlawful presence” relevant to an individual’s immigration status, and because a dictionary defines “present” as “being in a certain place and not elsewhere,” a person’s presence in any particular location—including, but not limited to, police custody—qualifies as that person’s “immigration status.” Dkt. 139 at 19. But § 1357(g)(10) refers not to “presence” alone, but to “unlawful presence.” (emphasis added). It is concerned, in other words, not with all presence anywhere in Chicago or the United States, but only with that type of presence that would cause a person’s status to be “unlawful.” And the INA clearly delineates the circumstances in which a person’s presence is “unlawful,”
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defining “unlawful presence” as presence “after the expiration of the period of stay authorized by the Attorney General or . . . without being admitted or paroled.” 8 U.S.C. § 1182(a)(9)(B)(ii). Because custody status or release date are not relevant to whether a person has overstayed a visa or entered the country illegally, such information cannot plausibly be swept into the term “unlawful presence,” let alone the term “immigration status.”
The Attorney General further argues that use of the introductory phrase “information regarding” in concert with “immigration status” broadens § 1373 to encompass any “information that assists the federal government in carrying out its statutory responsibilities” under the INA, including, he argues, the responsibility set by 8 U.S.C. § 1226(c) to take into custody certain “criminal aliens” upon their release from law-enforcement custody. Dkt. 139 at 19-20.9 But that is not the language Congress used in the statute. Rather than broadly link the “information” covered by § 1373 to the federal government’s long litany of immigration enforcement duties, Congress enacted a statute focused on two specific types of information: “immigration status” and “citizenship.” It did not, for example, target “any information likely to lead to [the] apprehension” of an “alien crewman” who has “illegally landed in the United States,” 8 U.S.C. § 1281(b), or “any information which relates to an alien,” id. § 1367(a)(2). At most, then, the term “information regarding” might encompass information that materially bears on an individual’s immigration status—such as, as just explained, whether a person overstayed a visa or entered the country illegally. Because the Attorney General cannot explain how the statutory duties he invokes make “custody status” or “release date” information materially relevant to immigration status or citizenship, such information cannot qualify as “information regarding . . . immigration status.”
9 The Attorney General suggests that 8 U.S.C. § 1226 imposes a duty to “take into custody any alien.” Dkt. 139 at 20 (emphasis added). The full text of Section 1226, however, is clear that a duty attaches only with regard to specified “criminal aliens.” 8 U.S.C. § 1226(c)(A)-(D) (listing categories of aliens whom the Attorney General is directed to “take into custody”).
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b. Chicago has no policy that prohibits or restricts CPD officers from “maintaining” immigration-status information
None of Chicago’s policies addresses the “maintenance” of immigration-status information. At most, they address collection of such information; the WCO, for example, prevents City officials and employees from investigating an individual’s immigration status except in certain specified situations. See MCC § 2-173-020. These policies, however, do not affect whether CPD “maintains” immigration-status information once it is collected. See Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718, 731 (Ct. App. 2009) (limited collection of immigration-status information does not “prohibit or in any way restrict” “maintenance” of such information). II. THE COURT SHOULD DENY DISMISSAL OF CHICAGO’S REMAINING
CLAIMS The Attorney General also argues that Chicago’s Spending Clause, Commandeering, and APA claims should be dismissed. Those arguments need not be addressed if the Court grants Chicago the summary relief requested above, but to the extent the Court entertains them, they fail.10 A. Standard Of Review The only “purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint.” Vill. of Sugar Grove v. FDIC, 2011 WL 3876935, at *2 (N.D. Ill. Sept. 1, 2011). If a motion to dismiss for failure to state a claim does not provide a legally sound basis to dismiss, the motion must be denied. See id. B. The Conditions Fail To Satisfy The Spending Clause’s Requirements
1. Each condition is ambiguous and fails to give a prospective Byrne JAG recipient sufficient notice of what would be required of it
The Byrne JAG program, like other Spending Clause legislation, operates “in the nature of a
10 Chicago also brought APA claims asserting that the Attorney General should have used notice-andcomment procedures and violated the Paperwork Reduction Act. Compl. ¶¶ 144, 147-155. It now withdraws those claims, without prejudice to its right to reassert them at a later time. See Fed. R. Civ. P. 41(a)(1).
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contract,” whereby grantees receive federal funds and, in exchange, agree to comply with federally imposed conditions. NFIB v. Sebelius, 567 U.S. 519, 577 (2012) (internal quotation marks omitted). For those conditions to be legitimate, recipients must be able to “exercise their choice knowingly.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The federal government cannot impose conditions if a recipient “is unable to ascertain what is expected of it” ahead of time. Id. Each of the three conditions the Attorney General seeks to impose fails that requirement.
With respect to the compliance condition, DOJ has taken the position that grantees must certify compliance with its ever-shifting and expansive interpretations of what § 1373 requires.11 Far from mitigating ambiguities in the statute, cf. Dkt. 139 at 13-14, DOJ’s interpretations—together with the Attorney General’s positions in this litigation—make the condition indecipherable. As explained above, the Attorney General has stated during this litigation both that § 1373 imposes no affirmative obligations, and that it does. See supra p. 11. And he now takes the position that “information regarding . . . immigration status” is a boundless phrase that includes an alien’s precise physical location—and, indeed, all “information that assists the federal government in carrying out its statutory responsibilities.” Dkt. 139 at 20-21. Given these positions, a city official is unable to “clearly understand,” see Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006), what qualifies as “information regarding . . . immigration status,” let alone whether the compliance condition imposes any affirmative obligations with respect to that information.12
Nor do the notice and access conditions provide grantees with adequate notice of the “consequences of their participation.” Pennhurst, 451 U.S. at 17. As with the compliance condition,
11 See RJN Ex. V (DOJ’s October 2017 “Preliminary Assessment”). 12 The Attorney General’s, and DOJ’s, shifting interpretations of § 1373, distinguish this case from Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003), on which the Attorney General relies to argue that “indeterminate” funding conditions are unobjectionable, so long as the recipients understand that compliance with that condition will be required. That case involved a static condition, which is far different from the standards here, which the Attorney General has refused to conclusively and consistently define.
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the Attorney General’s behavior during this litigation has rendered the notice and access conditions unintelligible. In defending against Chicago’s preliminary injunction motion, the Attorney General stated that the notice and access conditions will not be imposed as articulated in the grant solicitation, but that different versions of those conditions will apply. See Dkt. 32 at 20-21. And he now says that Chicago’s conditions might be different in some other unspecified way. Dkt. 139 at 12. Given DOJ’s shifting representations regarding what will be required under the notice and access conditions, a prospective grantee cannot realistically be expected to understand the consequences of its participation in the program. Furthermore, both conditions are entirely dependent on the future exercise of discretion by federal agents outside of DOJ: Notice is required before the release of any alien any time “DHS requests such notice,” and any “personnel of [DHS]” must be permitted access to “any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien).” RJN Ex. T at 30. Whether DHS will be cabined by any standards in exercising that discretion is a mystery. In particular, it is unclear what support DHS personnel will need to provide (if any) to show that an individual is an alien or “believed to be an alien.” This is no mere “indetermina[cy]” in terms, see Dkt. 139 at 14—these conditions turn entirely on the significant and unbounded discretion of actors outside DOJ’s control.
2. None of the conditions is germane to the purposes of the program Conditions imposed under the Spending Clause must be related to the federal interest in the project or program to which they are attached. South Dakota v. Dole, 483 U.S. 203, 207-208 (1987). The challenged conditions are not only unrelated to the goals of the Byrne JAG program, but they undermine them. Congress enacted the Byrne JAG statute “to give State and local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005) (emphasis added). That purpose is reflected in the program’s structure. Rather than impose substantive conditions on localities, the
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statute affords recipients flexibility to use program funds for any of eight broadly defined purposes. See 34 U.S.C. § 10152(a)(1). The conditions the Attorney General now seeks to impose do violence to the program’s goal of supporting flexible, locally driven policing and crime-reduction policies because they prevent Chicago from receiving its Congressionally dictated allocation of funding unless it yields to the Attorney General’s policies.
The Attorney General does not contest that the conditions are unrelated (and, in fact antithetical) to the purpose of providing local governments with flexibility to spend Byrne JAG funds. Instead, he argues that the relevant federal interest is a substantially broader one: to “provide resources for ‘criminal justice.’” Dkt. 139 at 10. This misses the mark. The inquiry into “relatedness” must focus on the federal interest in the “particular national projects or programs” to which the conditions are attached. Dole, 483 U.S. at 207. As discussed, the Byrne JAG program promotes the federal government’s broader interest in “criminal justice” by supporting flexible, locally driven projects and policies. That interest is the relevant benchmark under the Supreme Court’s precedents. See Philadelphia, 2017 WL 5489476, at *48, *49 (purpose of Byrne JAG is to “enhance[] local criminal justice” and to provide money for municipalities to “use . . . as they see fit”).
Even crediting the promotion of “criminal justice” as the proper touchstone, the conditions still fail the relatedness requirement because federal immigration law and immigration status have nothing to do with the enforcement of local criminal laws. See Philadelphia, 2017 WL 5489476, at *21. Most fundamentally, immigration enforcement is an area of civil, not criminal, law. Furthermore, criminal laws are enforced equally against all individuals regardless of their immigration status. And while the Byrne JAG program provides funding to support enforcement of local criminal laws, “immigration regulation and enforcement are federal functions.” Dkt. 78 at 28 (citing Arizona v. United States, 567 U.S. 387, 396-397 (2012)). The Attorney General responds that criminal law sometimes bears on immigration law. Dkt. 139 at 10-11. But the fact that criminal law
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enforcement may affect immigration status does not establish that the inverse is also true. If it were otherwise, one could invert the facts of Dole to reach the absurd conclusion that a program aimed at reducing alcohol abuse could require States to construct highways in a certain way. See also, e.g., Philadelphia, 2017 WL 5489476, at *48 (“[W]hile criminal law bears enormously on voting rights, voting laws don’t appear to have any impact on the criminal justice system.”). Conditions related to the enforcement of federal, civil immigration law are thus unrelated to the promotion of local criminal law enforcement and cannot be sustained under the Spending Clause.
3. The conditions are coercive The Spending Clause also prohibits grant conditions that are “so coercive as to pass the point at which pressure turns into compulsion” and thereby commandeer the States. Dole, 483 U.S. at 211 (internal quotation marks omitted). Here, the conditions require Chicago to either accept an unlawful grant condition or surrender substantial funds to which it would otherwise be entitled. The Attorney General argues that these conditions cannot be coercive because the amount of money Chicago stands to lose from the Byrne JAG program is small relative to Chicago’s budget. Dkt. 139 at 15. But more than the just Byrne JAG funds are at stake: The Attorney General has already refused to release millions of dollars that Chicago was already awarded via the COPS Hiring Program. And there is no reason to think that the Attorney General will stop there—indeed, the President issued a (now enjoined) order stating that the Attorney General “shall ensure” that any jurisdiction deemed to be a “sanctuary jurisdiction” does not receive any Federal money, Executive Order No. 13,768, § 9. See Cty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017). The Attorney General’s calculus therefore drastically underestimates the coercive force of his actions. In any event, the amount of money at stake is not the only feature that renders these conditions coercive. The Attorney General imposed these conditions at the last minute. That significantly increased the coercive force of his threat to withhold funding, as Chicago had already
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nearly completed its 2018 budget at the time the conditions were announced, and did not have time to replace or adequately plan around the possibility of losing federal funds that it has received every year since the Byrne JAG program was created. See RJN Ex. W at 48-49. For all of those reasons, the conditions imposed amount to impermissible compulsion.
4. The notice and access conditions would require the City to violate the Fourth Amendment
As initially written, the notice and access conditions violate the Spending Clause for the additional reason that they demanded unconstitutional action of recipients like Chicago. See Dole, 483 U.S. at 210. The FY2017 local solicitation required recipients to “provide at least 48 hours’ advance notice” of an “alien’s” release whenever DHS requests such notice, and to allow ICE ondemand access to any “detention facility” to interrogate anyone suspected of being a non-citizen. RJN Ex. T at 30 (emphasis added). To comply, grantees would have no choice but to prolong detentions without probable cause, thereby violating the Fourth Amendment. See Willis v. City of Chicago, 999 F.2d 284, 288-289 (7th Cir. 1993). Aware of that infirmity, the Attorney General has rewritten the notice and access conditions: Relying on award documents for other jurisdictions, the Attorney General now claims that recipients will be required to provide notice only “as early as practicable,” and that neither condition will require recipients to detain individuals “beyond the date and time the individual would have been released.” Dkt. 139 at 12. At the same time, the Attorney General refuses to admit that he has reached any final decision with regard to Chicago’s grant application and any attached conditions. See id. at 3. His equivocation does not carry his “heavy burden” of demonstrating that the original notice and access conditions “cannot reasonably be expected” to appear in Chicago’s award documents. Ciarpaglini v. Norwood, 817 F.3d 541, 545 (7th Cir. 2016). In the absence of unequivocal evidence that the original conditions will not be imposed, Chicago remains entitled to an injunction restraining the Attorney General from imposing those conditions on its FY2017 JAG funds. See Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998).
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C. The Attorney General Acted Arbitrarily And Capriciously In Adopting The Conditions
The Attorney General’s decision to impose the three challenged conditions falls well short of the reasoned decisionmaking required under the APA and accordingly must be set aside as arbitrary and capricious. See 5 U.S.C. § 706(2)(A). The Attorney General principally defends his actions by characterizing arbitrary and capricious review as nothing more than a rubber-stamp. See Dkt. 139 at 21-22. That is wrong: “While deferential, these standards are not toothless.” Pioneer Trail Wind Farm, LLC v. FERC, 798 F.3d 603, 608 (7th Cir. 2015). At a minimum, the agency must have “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Attorney General has failed this requirement for three independent reasons.
First, an agency acts arbitrarily or capriciously when it “‘entirely fail[s] to consider an important aspect of the problem.’” Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 668 (7th Cir. 2016). In its June 2017 § 1373 certification, Chicago explained that residents will be less willing to cooperate with CPD if Chicago is forced to repeal the WCO and to enforce federal immigration law. See RJN Ex. O at 2. But the documents the Attorney General identifies as justifying the new conditions (a press release and backgrounder) nowhere mention these concerns. See Dkt. 139 at 2122; RJN Exs. R, S. This failure to address a “substantial objection[] to [his] approach” renders his actions arbitrary and capricious. Schurz Commc’ns v. FCC, 982 F.2d 1043, 1050 (7th Cir. 1992).
Second, the Attorney General failed to provide a reasoned explanation for his actions. See Schurz, 982 F.2d at 1049. The Attorney General’s press release explains that he imposed the new conditions to further the DOJ’s “top priority of reducing violent crime.” RJN Ex. R. But neither the press release nor the accompanying backgrounder contain a shred of evidence supporting that claim. See RJN Exs. R, S. In fact, available data supports the opposite conclusion: at least one study
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has “f[ound] no support” for the argument that “sanctuary policies lead to increased crime.” Jennings Decl. Ex. B at 24 (cited at Compl. ¶ 28); see also id. Ex. A at 6 (cited at Compl. ¶ 29). Those documents fail to show that the Attorney General’s actions represent a reasonable response to the problem. See Schurz, 982 F.2d at 1049.
Finally, the Attorney General’s obligation to provide a reasoned explanation also “demands[s] that [he] display awareness that [he] is changing position” and that he “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). But the Attorney General did not acknowledge that, in conditioning Byrne JAG funding on a certification of compliance with § 1373, he was departing from historical practice of conditioning Byrne JAG funds only on certifications related to laws expressly applicable to recipients of federal funds. See RJN Ex. T at 41. (conditioning funds on compliance with statutes universally (besides § 1373) tied to federal funding).13 Such “[u]nexplained inconsistenc[ies]” are arbitrary and capricious. Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981(2005).
CONCLUSION For the reasons stated above, Chicago respectfully requests that the Court grant its crossmotion for summary judgment and deny the Attorney General’s motion to dismiss.
13 See also 29 U.S.C. § 794(a) (applying to “any program or activity receiving Federal financial assistance”); 20 U.S.C. § 1681(a) (“any educational program or activity receiving Federal financial assistance”); 42 U.S.C. § 6102 (“any program or activity receiving Federal financial assistance”); 34 U.S.C. § 10228(c) (“in connection with any programs or activity funded in whole or in part with funds made available under this chapter”); id. § 20110(b) (“Each recipient of sums under this chapter.”); id. § 11181 et seq. (setting forth general administrative provisions for certain DOJ funding programs); id. § 12291(b)(13) (setting forth conditions for Violence Against Women Act grants); 42 U.S.C. § 4332 (applying to “major Federal action funded under a program of grants to States”); id. § 4604(c) (agency may “withhold [its] approval of any Federal financial assistance”); id. § 2000d (“under any program or activity receiving Federal financial assistance”); 54 U.S.C. § 306108 (requiring certain actions “prior to the approval of the expenditure of any Federal funds”); id. § 312502(b)(1) (requiring certain actions in connection with Federal “financial assistance”); 5 U.S.C. § 1501(4) (applying to any “individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States”).
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January 31, 2018
JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) JACK STARCHER** (pro hac vice pending) JOSHUA ABBUHL (pro hac vice pending) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice) ADRIEL I. CEPEDA DERIEUX (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar ** Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON TAL CHAIKEN LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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CERTIFICATE OF SERVICE On the 31st day of January, 2018, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL

 
 Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 1 of 32 PageID #:3008

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff, v.

Civil Action No. 1:17-cv-05720 Hon. Harry D. Leinenweber

JEFF SESSIONS, Attorney General of the United States,

Defendant.

COMBINED REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS, OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY
JUDGMENT, AND RULE 56(d) REQUEST FOR DISCOVERY

DATED: February 28, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
JOHN R. TYLER Assistant Director
ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 2 of 32 PageID #:3009 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2
I. The City Does Not Challenge Final Agency Action That Is Judicially Reviewable. .... 2 II. The Challenged Conditions Are Authorized by Statute. ................................................ 4 III. The Challenged Conditions Are Consistent with the Spending Clause. ...................... 12 IV. The Challenged Conditions Do Not Commandeer the City......................................... 17 V. The Challenged Conditions Are Not Arbitrary or Capricious. .................................... 18 VI. The City Is Not Entitled to a Declaration That It Complies with 8 U.S.C. § 1373...... 20 CONCLUSION............................................................................................................................. 24
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 3 of 32 PageID #:3010
TABLE OF AUTHORITIES Cases Abbs v. Sullivan,
963 F.2d 918 (7th Cir. 1992)....................................................................................................... 4
Acker v. EPA, 290 F.3d 892 (7th Cir. 2002)....................................................................................................... 4
Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) .................................................................................................................. 17
Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) .................................................................................................................... 8
Arizona v. United States, 567 U.S. 387 (2012) .................................................................................................................. 19
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) .................................................................................................................... 6
Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................................................ 2, 3
Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004)................................................................................................. 15
Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................................................................. 12
Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003)..................................................................................................... 15
Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068 (7th Cir. 2016)..................................................................................................... 4
City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ........................................................................................................ 18
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803 (1989) .................................................................................................................. 21
Ethridge v. Harbor House Rest., 861 F.2d 1389 (9th Cir. 1988)..................................................................................................... 2
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FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .................................................................................................................. 19
Gonzales v. Oregon, 546 U.S. 243 (2006) .................................................................................................................. 10
Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................................................................... 9-10
Hillshire Brands Co. v. Travelers Cas. & Sur. Co., 2016 WL 6892885 (N.D. Ill. Nov. 23, 2016)............................................................................ 23
Impro Prods., Inc. v. Block, 722 F.2d 845 (D.C. Cir. 1983) .................................................................................................... 2
Jerome Milton, Inc. v. FTC, 734 F. Supp. 1416 (N.D. Ill. 1990) ......................................................................................... 3, 4
King v. Cooke, 26 F.3d 720 (7th Cir. 1994)....................................................................................................... 23
Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008)..................................................................................................... 11
Lockhart v. United States, 546 U.S. 142 (2005) .................................................................................................................... 9
Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011)..................................................................................................... 12
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .................................................................................................................. 12
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002)................................................................................................... 16
McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997)............................................................................................... 10, 11
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .................................................................................................................. 11
Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362 (1940) .................................................................................................................. 23
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 5 of 32 PageID #:3012
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) .................................................................................................................. 18
Pozzie v. U.S. Dep’t of Hous. & Urban Dev., 48 F.3d 1026 (7th Cir. 1995)..................................................................................................... 18
Printz v. United States, 521 U.S. 898 (1997) .................................................................................................................. 18
Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007)..................................................................................................... 3
Reno v. Condon, 528 U.S. 141 (2000) .................................................................................................................. 16
S. Dakota v. Dole, 483 U.S. 203 (1987) .............................................................................................................. 6, 17
Smith v. Office of Civilian Health & Med. Program of Uniformed Servs., 97 F.3d 950 (7th Cir. 1996)....................................................................................................... 18
Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) ...................................................................................... 22
Stone v. INS, 514 U.S. 386 (1995) .................................................................................................................... 7
Texas v. United States, 523 U.S. 296 (1998) .................................................................................................................. 21
U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) .................................................................................................................. 12
United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012)................................................................................................... 14
United States v. Kebodeaux, 570 U.S. 387 (2013) .................................................................................................................. 14
United States v. Outboard Marine Corp., 104 F.R.D. 405 (N.D. Ill. 1984) .................................................................................................. 2
United States v. Wise, 370 U.S. 405 (1962) .................................................................................................................... 9
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 6 of 32 PageID #:3013
Van Wyhe v. Reisch, 581 F.3d 639 (8th Cir. 2009)................................................................................................ 15-16
Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)..................................................................................................... 12
W. Fuels-Illinois, Inc. v. ICC, 878 F.2d 1025 (7th Cir. 1989)................................................................................................... 19
Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................................. 10
Statutes Municipal Code of Chicago § 2-173-042 .................................................................................... 21 5 U.S.C. § 551............................................................................................................................. 2, 3 5 U.S.C. § 553............................................................................................................................... 20 5 U.S.C. § 704................................................................................................................................. 3 8 U.S.C. § 1226................................................................................................................. 14, 19, 22 8 U.S.C. § 1227....................................................................................................................... 13, 19 8 U.S.C. § 1231....................................................................................................................... 14, 22 8 U.S.C. § 1252............................................................................................................................. 14 8 U.S.C. § 1324............................................................................................................................. 14 8 U.S.C. § 1357....................................................................................................................... 14, 19 8 U.S.C. § 1373...................................................................................................................... passim 28 U.S.C. § 510............................................................................................................................... 6 28 U.S.C. § 530C ......................................................................................................................... 5-6 34 U.S.C. § 10101........................................................................................................................... 5 34 U.S.C. § 10102.................................................................................................................. passim 34 U.S.C. § 10110........................................................................................................................... 5 34 U.S.C. § 10152......................................................................................................................... 13
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 7 of 32 PageID #:3014
34 U.S.C. § 10153.................................................................................................................. passim 34 U.S.C. § 10154......................................................................................................................... 20 34 U.S.C. § 10156........................................................................................................................... 5 34 U.S.C. § 10157........................................................................................................................... 5 34 U.S.C. § 10202........................................................................................................................... 8 34 U.S.C. § 10251............................................................................................................. 13, 14, 19 34 U.S.C. § 20901......................................................................................................................... 14 34 U.S.C. § 20927......................................................................................................................... 14 DOJ Reauthorization Act of 2005,
Pub. L. No. 109-162, 119 Stat. 2960 (2006) ............................................................................... 6 Regulations 2 C.F.R. § 200.203(c)(2) ............................................................................................................... 15 28 C.F.R. pt. 18 ............................................................................................................................. 20 28 C.F.R. § 66.12 ............................................................................................................................ 7 Federal Support for Local Law Enforcement Equipment Acquisition
Exec. Order No. 13,688, 80 Fed. Reg. 3451 (Jan. 16, 2015) ...................................................... 7 Rules Fed. R. Civ. P. 41 ............................................................................................................................ 2 Fed. R. Civ. P. 56 .................................................................................................................... 20, 23 Other Authorities H.R. Rep. No. 109-233 (2005).............................................................................................. 1, 7, 13 H.R. Rep. No. 104-469 (1996)...................................................................................................... 22 S. Rep. No. 104-249 (1996) .......................................................................................................... 22
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 8 of 32 PageID #:3015
INTRODUCTION Law enforcement in this country is a cooperative endeavor. Criminal acts often implicate the jurisdiction of more than one agency, and thus local, state, and federal officials work together in a variety of ways to fight crime and ensure public safety. Not surprisingly, then, federal law often contemplates, and is premised upon, such cooperation. This is true for the Immigration and Nationality Act, and it is true for the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). Both statutes explicitly contemplate and encourage effective law enforcement by promoting cooperation between the Federal Government on the one hand and local and state governments on the other. Unfortunately, the City of Chicago has in recent years adopted policies of non-cooperation that frustrate information-sharing with federal immigration authorities. And in this suit, the City seeks to further that stance by claiming that the Federal Government cannot condition its own law enforcement grants on such cooperation—even when an express statutory purpose of that funding is to promote cooperation. Grant conditions are a traditional aspect of participation in the Byrne JAG Program, and there is no legal infirmity in the U.S. Department of Justice’s imposition of the three conditions that the City challenges. To further information-sharing, those conditions require Byrne JAG Program grantees to comply with 8 U.S.C. § 1373, to give federal immigration authorities access to the City’s detention facilities to meet with aliens, and to give those authorities “as much advance notice as practicable” before releasing an alien. The conditions are consistent not only with statutes governing the Byrne JAG Program, see 34 U.S.C. §§ 10102(a)(6), 10153(a), but also with legislative history confirming that the Department is empowered to “place special conditions on all grants and to determine priority purposes for formula grants,” H.R. Rep. No. 109-233, at 101 (2005). And as a threshold matter, the City does not challenge final agency action so as to bring a proper challenge to the imposition of the conditions. There is moreover no merit to the City’s
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claims that the conditions violate the Spending Clause or the Tenth Amendment, nor is imposition of the conditions arbitrary or capricious because the conditions are rationally targeted at furthering the Byrne JAG Program’s goals of advancing criminal justice and public safety. Finally, the City’s request for a declaration that the City complies with 8 U.S.C. § 1373 is unripe and moreover fails in light of City policy that on its face appears non-compliant; in all events, the City’s leap to summary judgment proceedings on that claim is premature before any discovery has commenced of the City’s information-sharing practices. For all of these reasons, this case warrants dismissal in its entirety, and the City’s cross-motion for partial summary judgment should be denied.1
ARGUMENT I. The City Does Not Challenge Final Agency Action That Is Judicially Reviewable.
Inasmuch as the City’s claims challenging the imposition of the three conditions arise under the APA, they fail as a matter of law because the City does not challenge final agency action. See MTD at 2-4. As a preliminary matter, “[f]or there to be ‘final’ agency action, there must, of course, be ‘agency action,’” as defined by 5 U.S.C. § 551(13). Impro Prods., Inc. v. Block, 722 F.2d 845, 848-49 (D.C. Cir. 1983). Once an appropriate “agency action” is identified, finality is reached only when the action in question (1) “marks the consummation of the agency’s decisionmaking process,” and (2) is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).

1

Rather than attempting a futile defense of Counts Six and Seven of the Complaint, alleging claims

under the APA’s notice-and-comment rulemaking provisions and the Paperwork Reduction Act, see Mem.

of Law in Support of Def.’s Mot. to Dismiss (“MTD”) (Dkt. No. 139) at 23-25, the City abandons those

claims. See Pl.’s Br. (Dkt. No. 152) at 18 n.10. The City purports under Federal Rule of Civil Procedure

41(a)(1)(A)(i) to voluntarily dismiss each of those claims without prejudice, see id., but this attempt to

withdraw certain claims while persisting with other claims is ineffective, because the Rule does not allow

a plaintiff “to dismiss, unilaterally, a single claim from a multi-claim complaint.” Ethridge v. Harbor House

Rest., 861 F.2d 1389, 1392 (9th Cir. 1988) (collecting cases); see also United States v. Outboard Marine

Corp., 104 F.R.D. 405, 414 (N.D. Ill. 1984) (finding that “this procedure may be used only to dismiss entire

actions, not to dismiss only one of several claims against a defendant”). The City’s abandoned claims under

Counts Six and Seven of the Complaint therefore should be dismissed with prejudice.

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The City fails to identify an “agency action” within the meaning of the APA, much less one that is “final.” As relevant here, the APA defines “agency action” as “the whole or a part” of, inter alia, agency “relief . . . or [the] denial thereof,” 5 U.S.C. § 551(13), and “relief,” in turn, as including an agency “grant of money [or] assistance,” id. § 551(11)(A). Comporting with these definitions, in the context of agency grant-making in particular, “the congressional appropriation to [an agency] of funds for a particular project does not constitute a final agency action by the [agency] until the [agency] has reviewed a grant application and decided to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103-04 (9th Cir. 2007) (emphasis added). As there is no dispute that the Department has not yet determined whether to grant FY 2017 Byrne JAG funds to the City, or deny its pending application, it follows that there is, as of yet, no final agency action for this Court to review.
The City erroneously attempts to treat a preliminary, interlocutory step in the grant-making process—an announcement of intent to impose the challenged conditions—as though it were the final step. See Pl.’s Br. at 3. Rather than the City’s premature challenge, “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” 5 U.S.C. § 704. Only an FY 2017 award to the City that contains the challenged conditions, not an announcement of intent that is “tentative or interlocutory,” Bennett, 520 U.S. at 177, marks the consummation of the agency’s decisionmaking process. No such award has been made to the City. The City responds by asserting its belief that it is inevitable that the conditions will be imposed on any FY 2017 Byrne JAG award to the City, see Pl.’s Br. at 3, but “[s]imilar arguments have often been rejected in the case law.” Jerome Milton, Inc. v. FTC, 734 F. Supp. 1416, 1421 (N.D. Ill. 1990). “[T]he unlikelihood of any change in position by the agency upon the culmination of the administrative process is not ground for reviewing otherwise non-final agency action concerning the merits of the dispute.” Id. “To allow
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 11 of 32 PageID #:3018
judicial review whenever the final outcome appears to be predictable would completely decimate the finality rule and destroy the judicial review process contemplated by Congress.” Id.
Precisely because the challenged conditions have not actually been imposed on the City in an FY 2017 Byrne JAG award, the City cannot have suffered legal consequences from the imposition of the conditions, nor have rights or obligations been determined. The City suggests that “the conditions’ announcement effectively dictated whether state and local governments could or should even apply for funds all.” Pl.’s Br. at 3-4. But this response ignores that (a) the announcement of intended conditions “did not impose upon [the City] any sanction or administrative penalty,” Acker v. EPA, 290 F.3d 892, 894-95 (7th Cir. 2002); (b) the City did submit an FY 2017 application notwithstanding its objection to the announced conditions; (c) even the inclusion of the conditions in an FY 2017 award to the City will not bind the City to those conditions unless the City then accepts the award; and (d) the administrative process of applying for an award is not the type of burden associated with final agency action, see Abbs v. Sullivan, 963 F.2d 918, 927 (7th Cir. 1992) (an APA claim is improper where “the only harm the challenger seeks to avert is the inconvenience of having to go through the administrative process before obtaining a definitive declaration of his legal rights”). The City’s premature claims challenging the imposition of the conditions thus falter on the threshold ground that “[i]n the context of judicial review under the APA, a challenge to agency conduct is ripe only if it is filed after the final agency action.” Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016). II. The Challenged Conditions Are Authorized by Statute.
The City’s claims that the challenged conditions are ultra vires and violate the Constitution’s separation of powers fail because they rest fundamentally on the City’s incorrect view that Congress has not authorized the Department to impose these conditions. See MTD at 59. The conditions come within the Department’s authority granted by Congress to “plac[e] special
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 12 of 32 PageID #:3019
conditions on all grants,” 34 U.S.C. § 10102(a)(6), to “determin[e] priority purposes for formula grants,” id., and to ensure that grantees “comply with . . . all other applicable Federal laws,” id. § 10153(a)(5)(D). The City’s counter-arguments are unpersuasive, and even if the Court were to find that the Department lacks statutory authority for any of the conditions, the City’s requested nationwide injunction would be improper.
A. The City first argues that the challenged conditions cannot be authorized by statute because the Byrne JAG Program provides for formula grants rather than discretionary grants. See Pl.’s Br. at 4-5. But this argument confuses conditions on grant eligibility—such as the conditions at issue here—with the formula for allocating funds to eligible recipients. Although deviation from the statutory formula for allocating funds among eligible jurisdictions is not permitted except in limited circumstances, see 34 U.S.C. §§ 10156-10157, the amount of a jurisdiction’s award under that formula is unrelated to whether it has demonstrated its eligibility to receive the funds by complying with conditions authorized by statute. And these conditions of eligibility do less to mandate a “one size fits all” approach than, for example, a Byrne JAG condition that for years has prohibited using award funds to purchase items on a Prohibited Expenditure List that includes various types of equipment and weapons that some law enforcement agencies might otherwise have wanted to acquire. See Request for Judicial Notice (“RJN”) Ex. A (“2017 Greenville Award”) (Dkt. No. 140-1) ¶ 45.
The City also attempts to discount 34 U.S.C. § 10102(a)(6) as “an ancillary provision” concerning “bureaucratic functions of a sub-cabinet post.” Pl.’s Br. at 6. But the Assistant Attorney General for the Department’s Office of Justice Programs (“OJP”) is appointed by the President, subject to Senate confirmation, and answerable to the Attorney General’s supervision. See 34 U.S.C. § 10101. And the Attorney General has “final authority over all functions, including any grants . . . made . . . for the Office of Justice Programs.” Id. § 10110; see also 28 U.S.C. §
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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 13 of 32 PageID #:3020
530C(a)(4). Placement of the “special conditions” and “priority purposes” powers in the organic statute for OJP, and their investiture in OJP’s head (subject to the Attorney General’s final authority), comports with those powers’ importance and breadth.
The City also suggests that the Department’s view of 34 U.S.C. § 10102(a)(6) would confer on the Department “limitless power” to impose grant conditions. Pl.’s Br. at 6. But in exercising its delegated authority to impose “special conditions on” and “determin[e] priority purposes for” Byrne JAG grants, 34 U.S.C. § 10102(a)(6), the Department must adhere to the Spending Clause. While Spending Clause authority is undoubtedly “broad,” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006), it is “of course not unlimited,” S. Dakota v. Dole, 483 U.S. 203, 207 (1987) (citation omitted). A grant condition must, for example, be germane, noncoercive, and consistent with any independent constitutional requirement. See id. at 207-08. Moreover, the Department’s conditioning power is self-limiting in practice, because extremism in imposing conditions will cause prospective recipients to reject the grant rather than accept the condition. In addition to those limits, Congress judiciously vested these powers in Senateconfirmed Departmental officers, including the nation’s chief law enforcement officer.
Most centrally, the City contends that 34 U.S.C. § 10102(a)(6) is not itself a grant of authority, but only refers to authority that may be granted elsewhere. See Pl.’s Br. at 5-6. But the authority to “plac[e] special conditions on all grants, and [to] determin[e] priority purposes for formula grants” was added as part of the same legislation that created the Byrne JAG Program. See DOJ Reauthorization Act of 2005, Pub. L. No. 109-162, § 1152(b), 119 Stat. 2960 (2006) (adding language to subsection (a)(6)); id. § 1111 (creating Byrne JAG Program). The City does not explain why Congress would have added that language, if not to confer the authority described. Another law already authorized the Attorney General to delegate the performance of his functions. See 28 U.S.C. § 510. The City’s interpretation of the amendment thus seemingly gives no practical
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effect to either the “special condition” or “priority purpose” powers. Yet the legislative history for

Section 10102(a)(6) reiterates the broad language of the statute, explaining that the new provision

“allows the Assistant Attorney General to place special conditions on all grants and to determine

priority purposes for formula grants.” H.R. Rep. No. 109-233, at 101 (2005). And “[w]hen

Congress acts to amend a statute, [courts] presume it intends its amendment to have real and

substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).2

The City’s cramped reading of 34 U.S.C. § 10102(a)(6) moreover does not comport with

historical practice under which the Department has, without objection, imposed special conditions

on Byrne JAG awards to promote the Department’s law enforcement and public safety goals.

Without any tie to a specific statutory direction, the Department has, for example, imposed

conditions related to information-sharing and privacy protection, see 2017 Greenville Award ¶ 28;

human subjects research, see id. ¶ 31; and training, see id. ¶¶ 34-35. Other special conditions

historically imposed on Byrne JAG awards have been inspired by Executive Branch prerogatives,

and in some instances resulted in subsequent congressional codification. One such condition,

which prohibits use of Byrne JAG funds to purchase military-style equipment, relates in part to an

Executive Order issued by President Obama in 2015. See id. ¶ 45; Exec. Order No. 13,688, 80

Fed. Reg. 3451 (Jan. 16, 2015). Since 2012, other conditions have required that recipients comply

with specific national standards when purchasing body armor, and (b) institute a “mandatory wear”

2

The City may attempt to argue that “special conditions” should be understood to mean a particular

type of special conditions imposed on “high-risk” grantees under a general Department regulation, 28

C.F.R. § 66.12, that was in effect between 1988 and 2014. But the statutory “special conditions”

authorization contains no language referencing, incorporating, or otherwise limiting its application to the

regulation. And the regulation did not purport to describe the universe of appropriate special conditions

applicable to all types of grantees under a variety of programs. It is unclear why the only type of special

conditions authorized under the Byrne JAG Program would be those applicable to high-risk grantees, nor

is it clear that Congress looked to this regulation in any respect when it enacted the statutory language.

Moreover, this reading of “special conditions” still leaves unexplained the complementary power to

“determin[e] priority purposes” for formula grants like the Byrne JAG Program, as the Department may do

for non-formula, discretionary grants. That power independently allows for conditions that further the

Department’s priorities in issuing a grant.

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policy for any purchased armor. See id. ¶¶ 40-41. While those conditions have now been codified by Congress, see 34 U.S.C. §§ 10202(c)(1)(B), (C), they originated as exercises of the authority to impose special conditions. And the Assistant Attorney General has imposed an “American-made” requirement for body armor purchases, something Congress did not choose to codify. See id. ¶ 41. The City’s theory, which empties 34 U.S.C. § 10102(a)(6) of practical effect, does not account for such other Byrne JAG conditions beyond the ones challenged in this lawsuit.
B. The City argues that 34 U.S.C. § 10153(a)(5)(D) does not confer authority to impose a condition requiring compliance with 8 U.S.C. § 1373 because, according to the City, the statutory authority to require compliance with “all other applicable Federal laws” refers only to those federal “statutes that by their express terms govern recipients of federal funds” and Section 1373 is not such a law. Pl.’s Br. at 6. The City raised no such challenge when this condition was first imposed on the City in the FY 2016 grant cycle, and has no persuasive challenge now.
Section 10153(a)(5)(D) is properly read to refer to the corpus of federal laws that independently do apply to Byrne JAG grantees—recognizing that such grantees are state and local jurisdictions (not private individuals and entities) as to whom some federal laws are inapplicable. If Congress had intended to limit the term “applicable Federal laws” as referencing only statutes of the kind that the City suggests, it could have done so expressly without requiring resort to the attempts at straightjacketed statutory interpretation that the City offers. The City’s invocation of the ejusdem generis canon, see Pl.’s Br. at 7, fails because the structure of the phrase “all provisions of this part and all other applicable Federal laws” in Section 10153(a)(5)(D) “is disjunctive, with one specific and one general category, not . . . a list of specific items separated by commas and followed by a general or collective term.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008). Instead, the prefatory language “all other” in Section 10153(a)(5)(D) connotes that “applicable Federal laws” has a broader reach than the artificial limit that the City ascribes. The City offers
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no response to case law demonstrating that courts repeatedly have broadly interpreted the reach of similar statutory language. See MTD at 8.
The City also attempts to understand Section 10153(a)(5)(D) by referring to recent, failed legislation seeking to tie federal funding to compliance with Section 1373, see Pl.’s Br. at 7 n.3, but the Court should “decline to read any meaning into” such later legislative efforts, as “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” Lockhart v. United States, 546 U.S. 142, 146-47 (2005) (quotation omitted); see also United States v. Wise, 370 U.S. 405, 411 (1962) (“The interpretation placed upon an existing statute by a subsequent group of Congressmen who are promoting legislation and who are unsuccessful has no persuasive significance here.”). The City points to 2015 legislation proposing a permanent congressional mandate to withhold Byrne JAG funds for non-compliance with Section 1373; the different issue in this case, by contrast, is whether Congress, in prior legislation it actually enacted, gave the Department discretion to determine when to impose such a condition on Byrne JAG funds—and it is plausible that Congress preferred simply to stop at maintaining discretion and deferring to the judgment of the nation’s chief law enforcement agency.
The City also gains nothing from suggesting that the Department cannot have the power it claims because allegedly the Department has not previously demanded that Byrne JAG grantees comply with federal laws beyond those governing grantees. See Pl.’s Br. at 7 n.3. Where the statutory text naturally encompasses such authority, the contention that the Department has not previously exercised that authority does not rebut that the authority nevertheless exists.
The City ventures even further astray in suggesting that the Department’s reading of Section 10153(a)(5)(D) alters the state-federal balance and “raises serious federalism concerns.” Id. at 7. Whereas the issue here is an exercise of the Spending Clause power, the City cites cases addressing efforts to directly regulate state and local activities. See Gregory v. Ashcroft, 501 U.S.
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452, 457-64 (1991) (absent a clear statement a federal statute would not be construed to invalidate state mandatory retirement age for state judges); Gonzales v. Oregon, 546 U.S. 243, 248-49, 27475 (2006) (concluding that the Controlled Substances Act did not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure). A funding condition requiring compliance with an existing federal law that already applies to a state or locality does not alter the federal-state framework—especially because the state or locality is entirely free to refuse the funding rather than accept the condition. At bottom, the City has no answer to the conclusion that the Department’s power under Section 10153(a)(5)(D) sensibly reflects a congressional expectation that a recipient of federal funds may be required to certify its compliance with a federal law where the recipient is already obligated independently to comply with that federal law. See MTD at 9.
C. Because the Department is authorized under Section 10102(a)(6) and Section 10153(a)(5)(D) to impose the challenged conditions, the City’s ultra vires and separation of powers claims warrant dismissal as a matter of law. But even if the Court were to conclude that a condition lacks statutory authorization, the City’s request for a permanent nationwide injunction is improper.3 See Pl.’s Br. at 10. An injunction extending to entities other than the City of Chicago would violate principles of Article III standing and limitations on a court’s equitable authority.
It is fundamental that “plaintiffs lack standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997); see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even

3

The City contends that the standard for permanent injunctive relief is satisfied here based on

essentially the same considerations that the City believes supported a preliminary injunction. See Pl.’s Br.

at 9-10. The Department respectfully contends that those considerations did not then and do not now

establish the required showing for the extraordinary remedy of an injunction. See Def.’s Opp’n to Pl.’s

Mot. for Prelim. Inj. (Dkt. No. 32).

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Case: 1:17-cv-05720 Document #: 167 Filed: 02/28/18 Page 18 of 32 PageID #:3025
though the court’s judgment may benefit others collaterally.”). “The general rule is that a plaintiff has standing to sue only for injuries to his own interests that can be remedied by a court order.” Laskowski v. Spellings, 546 F.3d 822, 825 (7th Cir. 2008) (emphasis in original).
In McKenzie, the Seventh Circuit reversed an injunction that precluded the City of Chicago from operating a demolition program with respect to entities other than the plaintiffs. The district court had concluded “that it was appropriate to enjoin the entire program, despite the lack of class certification, in order to prevent the City from violating the Constitution.” McKenzie, 118 F.3d at 555. But that conclusion “assume[d] an affirmative answer to the question at issue: whether a court may grant relief to non-parties. The right answer is no.” Id. The Seventh Circuit held that “the injunction exceeded the district judge’s powers under Article III of the Constitution.” Id. at 555 n.*. Because the plaintiff’s “interests c[ould] be protected by an injunction that prevents the City from demolishing their properties,” the district court was wrong to “enjoin the entire program, despite the lack of class certification.” Id. at 555. Where no class has been certified, no justiciable controversy exists when the injury to the actual plaintiffs has been remedied. See id. (where “a class has not been certified, the only interests at stake are those of the named plaintiffs”); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (plaintiffs “d[id] not represent a class, so they could not seek to enjoin [an agency order] on the ground that it might cause harm to other parties”). Rather, in that scenario, the standing requirements of Article III preclude a court from granting relief that is not directed to remedying the injury asserted by the plaintiff.
Under these principles, the City does not have standing to seek an injunction broader than necessary to remedy its own asserted injury. The City properly does not claim that an injunction that extends to all grant applicants is necessary to remedy the City’s claimed harm, which is based entirely on the imposition of conditions on the City itself. This Court at most may grant relief to the City, but has no authority to extend its ruling to jurisdictions across the country.
11

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Apart from Article III requirements, the requested nationwide injunction would transgress fundamental limitations on a court’s exercise of its equitable powers. Equitable principles require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); see also U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (granting stay of Armed-Forces-wide injunction except as to individual plaintiff). Because the City is the only grant applicant in this lawsuit, and an injunction limited to the City provides the City with full relief, an injunction applying to other jurisdictions would exceed the Court’s equitable authority. See Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001); Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011).
A finding that a condition is facially invalid would not entitle the City to a nationwide injunction, because that linkage improperly conflates the scope of the City’s legal argument with the scope of relief necessary to remedy the City’s alleged injury. And such an injunction moreover would reflect an unfair asymmetry: insofar as the City prevails, the Court would issue relief that might have been appropriate if a class of all grant applicants had been certified; but insofar as the Federal Government prevails, it gains none of the benefits of prevailing in a class action, such as foreclosing other applicants from bringing suit on the same legal grounds urged here by the City.
Because of Article III and equitable limits on the scope of injunctions, any injunction that the Court might enter here should not extend beyond the City as the sole plaintiff in this action. III. The Challenged Conditions Are Consistent with the Spending Clause.
The challenged conditions satisfy the Spending Clause’s requirements that they be germane to the Byrne JAG Program, comport with independent constitutional requirements of the Fourth Amendment, provide adequate notice, and are not coercive. See MTD at 9-15. The City opposes dismissal on these grounds, but does not itself seek summary judgment on this claim.
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A. The grant conditions at issue here satisfy the relatedness requirement. The City overreaches in its insistence that germaneness for the Byrne JAG Program requires exclusive focus on “supporting flexible, locally driven policing and crime-reduction policies” and enforcement of local (as distinct from federal) laws. See Pl.’s Br. at 20-21. Such unalloyed deference to purely local prerogatives and issues is self-evidently misplaced, as the Byrne JAG statute directs no such thing and under the City’s theory it is unclear how any conditions on these federal funds would be constitutionally viable.4 Focusing on the statute, the text specifies that grant funds are designed to provide resources “for criminal justice,” 34 U.S.C. § 10152(a)(1), defined broadly as “activities pertaining to crime prevention, control, or reduction, or the enforcement of the criminal law, including, but not limited to, police efforts to prevent, control, or reduce crime or to apprehend criminals, . . . activities of courts having criminal jurisdiction, and related agencies,” id. § 10251(a)(1) (emphases added).
By comparison, the challenged conditions relate only to aliens who have either committed crimes or are suspected of having committed crimes. State and local cooperation with the Federal Government through the provision of basic information and access allows for effective enforcement of federal immigration law against aliens who are criminals or suspected criminals— and thus makes communities safer. The authorization in the Immigration and Nationality Act (“INA”) to remove aliens who commit any of a wide array of criminal offenses, see 8 U.S.C. § 1227(a)(2), is part and parcel of law enforcement and criminal justice, if for no other reason than that removal is one of the means by which the Federal Government protects the public and prevents recidivism by criminal aliens. And even if that basic point were not enough, numerous other INA provisions also intertwine these two subjects, and/or contemplate cooperation among state and

4

Even the legislative history cited by the City talks only of “more flexibility” for State and local

governments, not all-embracing local flexibility that leaves no room for federal prerogatives. See Pl.’s Br.

at 20 (quoting H.R. Rep. No. 109-233, at 89 (2005)).

13

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local officers and federal officials on immigration enforcement. See MTD at 11 (discussing 8 U.S.C. §§ 1226(c), 1231(a)(1)(B), 1252c, 1324(c), 1357(g)).
Beyond supporting the Byrne JAG Program’s criminal justice purposes with respect to “efforts to prevent, control, or reduce crime or to apprehend criminals” by “related agencies,” 34 U.S.C. § 10251(a)(1), the conditions also comport with the Byrne JAG Program’s purposes of ensuring that grantees undertake “appropriate coordination with affected agencies” and “report such data . . . and information (programmatic and financial) as the Attorney General may reasonably require.” Id. § 10153(a)(4), (5)(C). The challenged conditions thus directly advance statutory purposes of the Byrne JAG Program, and easily clear the low bar for constitutionallysufficient relatedness. See MTD at 9-10 (discussing legal standard).
The City also responds that immigration enforcement is a civil matter and thus not sufficiently related to criminal justice. See Pl.’s Br. at 21-22. This argument fails to account for the federal Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20901 et seq., which is also “a civil regulatory scheme rather than a criminal one.” United States v. Elkins, 683 F.3d 1039, 1044-45 (9th Cir. 2012). Notwithstanding SORNA’s civil nature, compliance with SORNA is directly tied to Byrne JAG funding. See 34 U.S.C. § 20927(a); United States v. Kebodeaux, 570 U.S. 387, 398 (2013) (observing approvingly that SORNA “used Spending Clause grants to encourage States to adopt its uniform definitions and requirements”). The Spending Clause’s relatedness inquiry thus plainly allows for the linkage of civil and criminal subject areas.
B. The City requests that the Court enjoin conditions that have never existed for any Byrne JAG award, on the ground that such hypothetical conditions allegedly would violate the Fourth Amendment if they ever were to be imposed. See Pl.’s Br. at 23. To state that request is to defeat it. The City does not dispute that the text of the notice and access conditions that actually have been imposed on initial FY 2017 Byrne JAG awards raises no Fourth Amendment problem.
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See MTD at 12. Instead, the City focuses on shorthand descriptions the Department employed when previewing its intent to impose those notice and access conditions. See Pl.’s Br. at 23. The City offers no explanation for its leap characterizing those shorthand descriptions offered for preview purposes as somehow “the original notice and access conditions” themselves. Id. Those shorthand descriptions were never suggested as the actual text of the forthcoming conditions, nor have those descriptions ever actually been imposed as conditions on any Byrne JAG award. The shorthand descriptions were not themselves grant conditions, akin to those contained in actual award documents; rather, they were merely a preview designed to “help an applicant make an informed decision about whether to submit an application.” 2 C.F.R. § 200.203(c)(2). The City’s attempt to leverage the voluntary cessation doctrine, see Pl.’s Br. at 23, thus fails—speculation about recurrence is misplaced because there was never an occurrence in the first place.5
C. The challenged conditions meet the Spending Clause’s notice requirement. See MTD at 13-15. The City has no response to the point that its premature claim of ambiguity arises before the City has availed itself of administrative consultation that the Byrne JAG Program invites. See id. at 13-15. Nor does the City persuasively refute case law showing that nitpicking about alleged uncertainty at the margins of the conditions’ requirements is not the type of ambiguity that raises a constitutional problem. See Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (“[T]he exact nature of the conditions may be largely indeterminate, provided that the existence of the conditions is clear, such that States have notice that compliance with the conditions is required.”); Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004) (“Once Congress clearly signals its intent to attach federal conditions to Spending Clause legislation, it need not specifically identify and proscribe in advance every conceivable state action that would be improper.”); Van

5

The City’s argument assumes that these hypothetical conditions would create a Fourth Amendment

problem, but that is not necessarily so. See MTD at 12 n.3.

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Wyhe v. Reisch, 581 F.3d 639, 650 (8th Cir. 2009) (finding notice requirement satisfied even where condition “provides a pliable standard”); Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (finding notice requirement satisfied even where condition required compliance with a “standard [that] is perhaps unpredictable because it has resulted in different determinations in different courts”). Under the applicable inquiry, the City cannot sustain its insistence that the compliance condition does not give fair notice when it asks the City to comply with a federal statute that has independently governed the City for over twenty years and whose meaning is for the courts, not the Department of Justice or the City, to decide.6 As to the notice and access conditions, the applicable inquiry also makes inconsequential the City’s criticism that the notice and access conditions involve the “discretion of actors outside DOJ’s control.” Pl.’s Br. at 20.7
D. The City cannot plausibly claim that the amount of funding available to the City under the Byrne JAG Program—constituting a maximum of 0.022% of the City’s budget for FY

6

The City offers a canard in repeatedly alleging that the Department has taken inconsistent positions

in this litigation on what Section 1373 requires. See Pl.’s Br. at 8 n.4, 11, 19. As the Department has

explained in earlier briefing, see Dkt. No. 110 at 8-9, long before this litigation commenced the Department

had already articulated its view that state and local governments are obligated to inform personnel, in the

face of apparently contrary state or local law, of the protection afforded by Section 1373. The City cannot

plausibly suggest that it can comply with Section 1373 only by assuring that it has adopted a certain

interpretation of ambiguous City law, without also informing City personnel that they are not, in fact,

prohibited from sharing information regarding immigration status with the Federal Government. Had the

City not enacted laws that otherwise appear to restrict information-sharing in violation of Section 1373,

there would be no need for the City to act to clarify the ambiguity the City has itself introduced. Nor,

contrary to the City’s view, see Pl.’s Br. at 8 n.4, 14-15, does unconstitutional commandeering occur when,

because of a jurisdiction’s own ambiguous policies, it becomes necessary for the jurisdiction merely to

advise its personnel about what federal law allows—which is far from conscripting states and localities into

immigration enforcement efforts. See Reno v. Condon, 528 U.S. 141, 150 (2000) (rejecting commandeering

challenge even though state argued that federal statute “requires the State’s employees to learn and apply

the Act’s substantive restrictions” and Supreme Court agreed that federal statute’s “provisions will require

time and effort on the part of state employees”). “Any federal regulation demands compliance. That a

State wishing to engage in certain activity must take administrative and sometimes legislative action to

comply with federal standards regulating that activity is a commonplace that presents no constitutional

defect.” Id. at 150-51 (citation omitted).

7

The City’s allegation that the Department has given “shifting representations” because the preview

descriptions of the notice and access conditions are only shorthand for the fully-articulated notice and access

conditions, see Pl.’s Br. at 20, is another canard. See supra at 15.

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2017—meets the constitutional threshold of coerciveness. See MTD at 15. The City thus resorts to alleging coerciveness based on the imposition of a condition requiring compliance with Section 1373 in an entirely different grant program that is nowhere mentioned in the City’s Complaint and as to which the Complaint seeks no relief. See Pl.’s Br. at 22.8
And it is difficult to understand the City’s suggestion that the three challenged conditions— one of which had already existed from the FY 2016 cycle, and all of which were previewed in July 2017 for the FY 2017 cycle—are coercive because they were introduced “at the last minute” in relation to the City’s “2018 budget” process. Id. at 22. The City cites its own 2018 “budget calendar,” but that document shows that “[a]dditions or changes to the [City’s] proposed budget are considered” as late as “November/December” of 2017—several months after the City became aware of the prospect of the challenged conditions (and even the text of actual conditions) on FY 2017 Byrne JAG awards. Dkt. No. 157-23 at 49. IV. The Challenged Conditions Do Not Commandeer the City.
The challenged conditions do not commandeer the City in violation of the Tenth Amendment. See MTD at 15-17. The City’s opposition nowhere addresses the threshold point that a Tenth Amendment analysis is inapposite here because this case involves a grant that the City is free to accept or reject, not any federal mandate that directly regulates the City. See id. at 1516. A “perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.” Dole, 483 U.S. at 210; see also Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013) (“As a general matter, if a party objects to a condition on the receipt of federal funding, its

8

Funding at stake to the City under that other grant program (which is not even a part of this lawsuit)

is, according to the City, limited to $3.125 million. See Pl.’s Statement of Undisputed Material Facts (Dkt.

No. 153) ¶ 50. That amount is still nowhere near coercive when measured against the City’s FY 2017

budget of $9.81 billion. See MTD at 15.

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recourse is to decline the funds.”). That point alone disposes of the City’s commandeering claim. Indeed, the City has abandoned its commandeering theory as to the notice and access conditions.
The City seeks nevertheless to attack Section 1373 as an independent statutory mandate, but the City’s charge that the statute is “facially unconstitutional” fails on its own merits. Pl.’s Br. at 8. The City argues that Section 1373 improperly limits the City’s power to decline participation in a federal program. See id. But the Tenth Amendment does not give states and localities “an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs,” particularly in the information-sharing context. City of New York v. United States, 179 F.3d 29, 34-35 (2d Cir. 1999). Merely protecting the transmission of information to federal authorities does not “compel the State[] to enact or administer a federal regulatory program” or to “act on the Federal Government’s behalf.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 575, 620 (2012) (citation omitted); see also Printz v. United States, 521 U.S. 898, 918 (1997) (contrasting federal statutes that “require only the provision of information to the Federal Government” with those that “force[] participation of the States’ executive in the actual administration of a federal program”). V. The Challenged Conditions Are Not Arbitrary or Capricious.
The challenged conditions are not arbitrary or capricious, because they relate rationally to the Byrne JAG Program’s purposes. See MTD at 21-23.9 The “arbitrary or capricious” inquiry is “highly deferential” to the agency, Smith v. Office of Civilian Health & Med. Program of Uniformed Servs., 97 F.3d 950, 955 (7th Cir. 1996), and turns on whether the challenged decision “is supported by a ‘rational basis.’” Pozzie v. U.S. Dep’t of Hous. & Urban Dev., 48 F.3d 1026, 1029 (7th Cir. 1995) (citation omitted). Under this “narrow standard of review,” the City’s claim

9

The City does not respond at all to the Department’s initial point that, if the conditions are

statutorily authorized and comport with the Spending Clause, it is unclear how “arbitrary or capricious”

scrutiny could otherwise limit the Department’s broad discretion. See MTD at 21.

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fails because the Department’s “reasons for” imposing the challenged conditions “were entirely rational.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 517 (2009) (citation omitted).
The challenged conditions easily meet the rational basis standard because they support the Byrne JAG Program’s criminal justice purposes with respect to “efforts to prevent, control, or reduce crime or to apprehend criminals” by “related agencies,” 34 U.S.C. § 10251(a)(1), by facilitating federal efforts to remove criminal aliens. Once removed, an alien who has committed a removable criminal offense is undeniably no longer present in this country with the potential to re-offend. See 8 U.S.C. § 1227(a)(2) (providing that a criminal conviction for any of a wide array of criminal offenses renders an alien removable). The conditions also rationally promote interests in “maintain[ing] liaison” among tiers of government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and comport with the intergovernmental cooperation that Congress contemplates in immigration enforcement, see 8 U.S.C. §§ 1226(d), 1357(g), 1373; Arizona v. United States, 567 U.S. 387, 411-12 (2012) (“Consultation between federal and state officials is an important feature of the immigration system” and Congress “has encouraged the sharing of information about possible immigration violations.”).
The City contends that this rationale—reducing crime based on information-sharing that supports immigration enforcement to remove criminal aliens—does not fully consider the issue and lacks supporting evidence. See Pl.’s Br. at 24-25. But the Department found it is “commonsense” that facilitating removal to eliminate the threat of recidivism by criminal aliens “help[s] keep our communities safe,” Dkt. No. 1-3, and “even in the absence of evidence, the agency’s predictive judgment (which merits deference) makes entire sense” as “an exercise in logic rather than clairvoyance.” Fox Television, 556 U.S. at 521; see also W. Fuels-Illinois, Inc. v. ICC, 878 F.2d 1025, 1030 (7th Cir. 1989) (“We give great deference to an agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise.” (citation omitted)). The
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City’s apparent expectation that the Department should have issued a comprehensive supporting study for the conditions also ignores that Congress did not intend to encumber agencies with burdensome procedural prerequisites for determining grant conditions; to the contrary, Congress expressly exempted “grants” from the APA’s ordinary notice-and-comment rulemaking procedures. 5 U.S.C. § 553(a)(2); see MTD at 23.
The City additionally suggests that the imposition in FY 2017 of a condition requiring compliance with Section 1373 is an unexplained “depart[ure] from historical practice.” Pl.’s Br. at 25. But that condition is not “changing position” or creating a “new policy” at all, id., because the condition had already been implemented previously in FY 2016 Byrne JAG awards under the prior Administration, without any objection by the City or any other grantee. VI. The City Is Not Entitled to a Declaration That It Complies with 8 U.S.C. § 1373.
The Court should decline jurisdiction over the City’s request to be declared compliant with Section 1373, and that request in any event fails because the City’s allegations suggest a violation of Section 1373. See MTD at 17-20. Even if the Court were not to dismiss the claim at this time, the Department contends—pursuant to Federal Rule of Civil Procedure 56(d), and in reliance on the affidavit submitted herewith—that summary judgment for the City on this claim would be premature before any discovery has been taken as to the City’s information-sharing practices.
A. The Court should decline to exercise jurisdiction over the City’s Declaratory Judgment Act claim. See MTD at 17-19. The most central reason is that the claim is premature. The Department has been conducting an administrative process with the City regarding Section 1373 compliance and has yet to render its final assessment. See id. at 18. With respect to the City’s FY 2017 application, even after the Department were to make any determination to reject it on the basis that the City violates Section 1373, the City would have an opportunity to appeal that determination administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R. pt. 18. The
20

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Department could decide, either upon considering the City’s existing submissions, or upon considering any administrative appeal, that the City does not violate Section 1373 and that Byrne JAG funds will not be withheld on that basis. Accordingly, the City’s request for a declaration “rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted). As this Court stated in an earlier opinion in this case, the Department “has yet to make a determination about Chicago’s eligibility for funds” and if the Department “makes a final determination that Chicago is eligible for 2017 Byrne JAG funds, then no harm accrues to Chicago.” Dkt. No. 125 at 10.
B. The City’s claim for declaratory relief fails in any event because City policy on its face suggests that the City violates Section 1373. See MTD at 19-20. The City does not dispute that Municipal Code of Chicago § 2-173-042 restricts the City’s agencies and agents from sharing a person’s custody status or release date with federal immigration authorities. The City instead contends incorrectly that “information regarding . . . immigration status” under Section 1373 does not cover custody release information. See Pl.’s Br. at 16-17.10
The City’s response attempts to ignore the overall scheme of the INA in relation to aliens who have committed, or are suspected of, state or local crimes—which is crucial to understanding Section 1373. A “fundamental canon of statutory construction” is that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep’t of Treasury, 561 U.S.803, 809 (1989). Under the INA, immigration authorities

10

The City offers an irrelevant discussion of its view that Section 1373 violates the Tenth Amendment

to the degree that the statute requires the City, in the face of ambiguously-worded City policies that create

doubt, to instruct City employees that they are free to assist federal immigration officials by sharing

information as contemplated by Section 1373. See Pl.’s Br. at 14-15. That legal issue is not properly before

the Court for review, because there is no live controversy insofar as the City acknowledges that it has

already acted to inform its employees that Section 1373’s protections continue to apply notwithstanding the

ambiguity of certain City policies that might be read to suggest otherwise. See id. at 15. Regardless, the

City’s self-incurred obligation to provide such clarification to its personnel poses no problem of

unconstitutional commandeering. See supra at 16 n.6.

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may not, except in limited circumstances, “remove an alien who is sentenced to imprisonment until

the alien is released from imprisonment,” 8 U.S.C. § 1231(a)(4); the immigration removal period

“begins on . . . the date the alien is released from [state or local criminal] detention,” id. §

1231(a)(1)(B)(iii); and federal immigration custody must begin “when the alien is released” from

criminal custody, id. § 1226(c)(1) (emphasis added). The City does not, and cannot, deny that

protecting the exchange of information with federal immigration authorities regarding a removable

alien’s custody status and release date helps ensure that those authorities will be able to timely take custody of the alien, as required by the INA, upon release from state or local custody.11 That is

the principal object of Section 1373.

The City also wholly ignores legislative history that harmonizes with the above-described

statutory context and contradicts the City’s interpretation. That history expressly affirms that

Section 1373 “give[s] State and local officials the authority to communicate with [federal

immigration authorities] regarding the presence, whereabouts, and activities of illegal aliens.”

H.R. Rep. No. 104-469, pt. 1, at 277 (1996) (emphasis added). Other legislative history

admonished “[t]hose who are reluctant to enforce the immigration laws,” and declared, in reference

specifically to what became Section 1373, that “[t]he acquisition, maintenance, and exchange of

immigration-related information by State and local agencies is consistent with, and potentially of

considerable assistance to, the Federal regulation of immigration and the achieving of the purposes

and objectives of the Immigration and Nationality Act.” S. Rep. No. 104-249, at 7, 19-20 (1996).

Section 1373 thus is motivated by the principle that “[e]ffective immigration law enforcement

requires a cooperative effort between all levels of government.” Id. at 19. Such cooperation is

what the City now seeks to eschew.

11

The City relies on Steinle v. San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017), regarding

the scope of information covered by Section 1373. See Pl.’s Br. at 16. The court in that case did not,

however, have the benefit of the Federal Government’s briefing on this issue.

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C. If the Court does not at this time dismiss the City’s claim for a declaration that the City complies with Section 1373, the Department requests pursuant to Federal Rule of Civil Procedure 56(d) that the Court defer summary judgment proceedings on this claim pending an opportunity to take discovery of the City’s information-sharing practices. Rule 56(d) “is intended as a safeguard against a premature grant of summary judgment” and courts “construe the rule liberally.” King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994). “Courts are generally lenient in granting Rule 56(d) motions when the party has been diligent during any previous discovery and especially so when discovery has not yet commenced,” as is the case here. Hillshire Brands Co. v. Travelers Cas. & Sur. Co., 2016 WL 6892885, at *1 (N.D. Ill. Nov. 23, 2016).
No Rule 26(f) conference has been held in this matter, no Rule 16 scheduling order has been issued, initial disclosures have not been exchanged, and discovery has not commenced. Having moved to dismiss the City’s claim for declaratory relief as facially inadequate, the Department has not as yet sought to take discovery on that claim, and doing so would be inefficient before the motion to dismiss is decided. Though the Department’s litigation decisions presumably will be shaped by the Court’s ruling on the motion to dismiss, the affidavit of counsel submitted herewith provides a non-exhaustive explanation of factual development that the Department currently anticipates undertaking through discovery if this claim survives dismissal.
Most centrally, discovery is necessary because the City’s compliance with Section 1373 turns not only on the face of the City’s policies, but also on the City’s actual practices and conduct in implementing those policies. Further factual development would be required before an adjudication could be made that the City’s practices, beyond the face of the City’s policies, comply with Section 1373. See Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369 (1940) (“It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it.
23

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Settled state practice . . . can establish what is state law.”). Importantly, Section 1373 speaks not only to enacted local policies, but also to any restriction on information-sharing by any “entity or official.” The City’s claim entitles the Department to explore, beyond what is promulgated as official policy, the day-to-day reality of what is understood and practiced among the rank-and-file.
The evidentiary material submitted by the City in support of summary judgment demonstrates that there can be divergence between the City’s official policy and City personnel’s working understanding. The City submits a declaration by a veteran police Lieutenant averring that “[i]t is our engrained practice not” to “ask for or investigate a person’s immigration status” and that “cooperation . . . with immigrant communities would be materially damaged if the Chicago Police Department were to begin investigating peoples’ immigration status.” Hannigan Decl. (Dkt. No. 155) ¶¶ 4-5. Yet the Chicago Police Department’s Special Order S06-14-03 (Dkt. No. 157-6) provides in Section V.C that “Department members may seek information on immigration status during the course of an investigation” under certain circumstances. Just as this declaration indicates a working practice that may diverge from what City policy facially contemplates, discovery is needed to explore whether other such discrepancies exist that go to the City’s compliance with Section 1373.
The record that the City has unilaterally compiled for adjudication of summary judgment on this claim is, accordingly, inadequate to make any comprehensive declaratory ruling that the City complies with Section 1373. The Department suggests that, as in the ordinary course of litigation, the Court should first resolve the motion to dismiss this claim, then allow discovery on the claim if it survives dismissal, and only then adjudicate summary judgment on the claim.
CONCLUSION For the reasons stated herein and in the Department’s opening brief, the Complaint should be dismissed in its entirety and the City’s motion for partial summary judgment warrants denial.
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DATED: February 28, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
JOHN R. TYLER Assistant Director
/s/ Arjun Garg ARJUN GARG W. SCOTT SIMPSON Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

25

 
 Case: 1:17-cv-05720 Document #: 170 Filed: 03/21/18 Page 1 of 29 PageID #:3066

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

THE CITY OF CHICAGO,
P la i n ti ff, v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States
De fe n d a n t.

Civil Action No. 1:17-cv-5720 Hon. Harry D. Leinenweber

REPLY IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Case: 1:17-cv-05720 Document #: 170 Filed: 03/21/18 Page 2 of 29 PageID #:3067
TABLE OF CONTENTS ARGUMENT..................................................................................................................................................... 2
I. SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE ATTORNEY GENERAL’S CONDITIONS ARE ULTRA VIRES .......................... 2 A. The Decision To Impose The Conditions Is Final Agency Action .................. 2 B. The Notice and Access Conditions Are Ultra Vires............................................. 4 C. The Compliance Condition Is Ultra Vires ............................................................. 7 D. The Court Should Issue A Nationwide Injunction............................................13
II. THE COURT SHOULD DECLARE THAT CHICAGO COMPLIES WITH § 1373 .....................................................................................................................................15 A. A Declaratory Judgment Is Warranted ................................................................15 B. No Discovery Is Necessary ...................................................................................16 C. Chicago Complies With § 1373.............................................................................20
CONCLUSION ............................................................................................................................................... 21
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TABLE OF AUTHORITIES Page(s)
CASES Abbs v. Sullivan,
963 F.2d 918 (7th Cir. 1992)..................................................................................................................2, 3 Acker v. EPA,
290 F.3d 892 (7th Cir. 2002)......................................................................................................................3 Agency for International Development v. Allinace for Open Society International, Inc.,
570 U.S. 205 (2013)...................................................................................................................................13 Alexander v. Sandoval,
532 U.S 275 (2001)....................................................................................................................................12 Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008).................................................................................................................................8, 9 Alvarado-Fonseca v. Holder,
631 F.3d 385 (7th Cir. 2011)....................................................................................................................18 American Health Care Ass’n v. Burwell,
217 F. Supp. 3d 921 (N.D. Miss. 2016) .................................................................................................10 Baker v. Lindgren,
856 F.3d 498 (7th Cir. 2017)....................................................................................................................18 Bennett v. Spear,
520 U.S. 154 (1997).....................................................................................................................................2 Bond v. United States,
134 S. Ct. 2077 (2014) ..............................................................................................................................10 Branch v. Smith,
538 U.S. 254 (2003)...................................................................................................................................13 Buquer v. City of Indianapolis,
2012 WL 829666 (S.D. Ind. Mar. 9, 2012) ............................................................................................18 California ex rel. Becerra v. Sessions,
2018 WL 1156774 (N.D. Cal. Mar. 5, 2018) ........................................................................................... 3 Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001).....................................................................................................................................9
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City of Arlington v. FCC, 569 U.S. 290 (2013).....................................................................................................................................4
City of New York v. Beretta USA Corp., 524 F.3d 384 (2d Cir. 2008)...................................................................................................................8, 9
City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017)............................................................................................. 3, 4, 12
City of Philadelphia v. Sessions, 2018 WL 1305789 (E.D. Pa. Mar. 13, 2018) ........................................................................................... 3
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)...................................................................................................................................14
Davel v. Sullivan, 902 F.2d 559 (7th Cir. 1990)....................................................................................................................20
Davis v. G.N. Mortgage Corp., 396 F.3d 869 (7th Cir. 2005)....................................................................................................................17
Decker v. O’Connell, 661 F.2d 598 (7th Cir. 1980)....................................................................................................................14
Dumas v. Dovenmuehle Mortgage Inc., 2005 WL 1528262 (N.D. Ill. June 23, 2005) .........................................................................................18
Epsilon Electronics v. U.S. Department of Treasury, 857 F.3d 913 (D.C. Cir. 2017) ................................................................................................................... 5
Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005)...................................................................................................................................20
Falkenberg v. Alere Home Monitoring, Inc., 2014 WL 5020431 (N.D. Cal. Oct. 7, 2014)............................................................................................9
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)...................................................................................................................................10
FMC v. Seatrain Lines, Inc., 411 U.S. 726 (1973).....................................................................................................................................7
Gaffney v. Riverboat Services of Indiana, 451 F.3d 424 (7th Cir. 2006)..................................................................................................................5, 6
Gonzalez v. Oregon, 546 U.S. 243 (2006)...............................................................................................................................7, 10
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Grayson v. O’Neill, 308 F.3d 808 (7th Cir. 2002)....................................................................................................................17
Gregory v. Ashcroft, 501 U.S. 452 (1991).......................................................................................................................... 4, 7, 10
Ileto v. Glock, Inc., 421 F. Supp. 2d 1274 (C.D. Cal. 2006) .................................................................................................... 8
Jerome Milton, Inc. v. FTC, 734 F. Supp. 1416 (N.D. Ill. 1990) ........................................................................................................... 3
McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997)....................................................................................................................15
Medical Assurance Co. v. Hellman, 610 F.3d 371 (7th Cir. 2010)....................................................................................................................16
Missouri v. Jenkins, 515 U.S. 70 (1995).....................................................................................................................................14
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).....................................................................................................................................7
New West v. City of Joliet, 2012 WL 366733 (N.D. Ill. Jan. 30, 2012).............................................................................................16
New York v. United States, 505 U.S. 144 (1992)...................................................................................................................................12
Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985)...................................................................................................................................20
Printz v. United States, 521 U.S. 898 (1997)...................................................................................................................................13
Rattlesnake Coalition v. EPA, 509 F.3d 1095 (9th Cir. 2007) ................................................................................................................... 3
Reves v. Ernst & Young, 494 U.S. 56 (1990).......................................................................................................................................9
River Road Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642 (7th Cir. 2011)......................................................................................................................5
S.E.C. v. Sloan, 436 U.S. 103 (1978).....................................................................................................................................7
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Safari Club International v. Jewell, 842 F.3d 1280 (D.C. Cir. 2016) ................................................................................................................. 3
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ..............................................................................................................................16
Texas v. United States, 809 F.3d 134 (5th Cir. 2015)....................................................................................................................14
Transport Leasing/Contract, Inc. v. Methvin, 1992 WL 67846 (N.D. Ill. Mar. 24, 1992) .............................................................................................17
Trump v. IRAP, 137 S. Ct. 2080 (2017) ..............................................................................................................................14
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) ................................................................................................................................ 3
Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016) ..............................................................................................................................11
West Bend Mutual Insurance Co. v. Procaccio Painting & Drywall Co., 928 F. Supp. 2d 976 (N.D. Ill. 2013)......................................................................................................17
Western Illinois Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998)......................................................................................................................2
Whitman v. American Trucking Assocs., 531 U.S. 457 (2001).....................................................................................................................................4
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)...................................................................................................................................10
DOCKETED CASES
City of Chicago v. Sessions, No. 17-2991 (7th Cir.)...........................................................................................15
United States v. California, No. 2:18-at-00264 (E.D. Cal.).............................................................................16
STATUTES, RULES, AND REGULATIONS
5 U.S.C. § 551(4) ......................................................................................................................................................... 4 § 551(13) ....................................................................................................................................................... 4
8 U.S.C. § 1373...........................................................................................................................................passim
16 U.S.C. § 2601 et seq......................................................................................................................................11
26 U.S.C. § 3402...............................................................................................................................................11
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34 U.S.C. § 10102(a)(6) ................................................................................................................................. 4, 5, 6, 18 § 10152(d).....................................................................................................................................................7 § 10152(e) ..................................................................................................................................................... 6 § 10153(a) .................................................................................................................................... 8, 9, 10, 12 § 10153(a)(4) ................................................................................................................................................ 6 § 10153(a)(5) ..........................................................................................................................................7, 12 § 10153(a)(5)(D) ....................................................................................................................................8, 11 § 10153(b).................................................................................................................................................5, 7 § 10228(a) ............................................................................................................................................ 10, 19 § 10231(c) ..................................................................................................................................................... 6 § 20927(a) .................................................................................................................................................5, 9 § 30307(e)(2)(A)...........................................................................................................................................9 § 60105(c)(2) ............................................................................................................................................6, 9
42 U.S.C. § 300v-1 ............................................................................................................................................. 6 28 C.F.R. § 66.12................................................................................................................................................6
OTHER AUTHORITIES Federal Grant Practice, § 25.4-14 .................................................................................................................... 6 H.R. Rep. 109-233 (2005) ...............................................................................................................................10 Preventing the Catch and Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong. (2015).....................10
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The Attorney General identifies no genuine disputes of material fact, and the Court has a complete record on which to resolve pure questions of law: Are the conditions imposed on the JAG formula grant ultra vires? Yes, because none is authorized by the JAG statute or any other law. Should injunctive relief be nationwide? Yes, for the reasons already articulated by this Court. Is Chicago also entitled to a declaration that it complies with 8 U.S.C. § 1373? Yes, because no City policy prohibits information sharing within the narrow meaning of that law. The immaterial discovery and resulting delay requested by the Attorney General would serve no purpose.
And the need for relief here is urgent. It has been six months since the date that the Attorney General stated he would issue awards for FY2017 JAG grants. No award is forthcoming, and meanwhile his threats to Chicago keep multiplying. The Attorney General is now withholding grant money from an additional program—the COPS grant—that helps cities like Chicago hire new police officers. And less than a month ago, the Attorney General sued the State of California, making good on a threat that he also has leveled at Chicago and other jurisdictions who stand behind their own welcoming policies rather than bend to the will of the federal Executive.
In our system of federalism, state and local governments may not be coerced by the federal Executive without a clear mandate from Congress—and indeed, even then, the federal government may not substitute its policy priorities for those of state and local governments without their consent. The Attorney General now says that “[l]aw enforcement in this country is a cooperative endeavor.” It should be. But Chicago sought relief from this Court because the Attorney General rejected genuine cooperation between sovereigns and instead chose threats and confrontation. This approach is not just bad policy; it is unlawful because Congress never authorized the Attorney General’s efforts to reverse the City’s long-held policies by threatening to withhold JAG funds, and because the Attorney General has no other legal basis for his actions. Summary judgment should be granted, and a permanent injunction and a declaration of compliance with § 1373 should issue.
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ARGUMENT I. SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE
ATTORNEY GENERAL’S CONDITIONS ARE ULTRA VIRES A. The Decision To Impose The Conditions Is Final Agency Action The Attorney General concedes that he has reached a final decision to impose the notice, access, and compliance conditions. See Opp., Dkt. 167 at 3-4; Def.’s Response to Pltf.’s SUMF (“RSUMF”), Dkt. 168, ¶¶ 17-18. Indeed, the FY2017 JAG solicitation states unequivocally that awards “will include” the three conditions, SUMF ¶ 22, which the Attorney General confirmed in a sworn declaration in this lawsuit, SUMF ¶ 27. See also Dkt. 32 at 21 (awards containing “the final language of th[e] conditions” for all grantees (emphasis added)). Having acknowledged his final decision to impose the conditions, the Attorney General now argues that only the ultimate decision to grant or deny a JAG grant application matters for APA purposes. Opp. 3. This is perplexing, given that the Attorney General—after pledging his intention to issue annual awards in September 2017, Dkt. 28, ¶ 4—has been holding Chicago’s (and many others’) FY2017 JAG applications in stasis for six months, with no “final decision” in sight. But in any event, it is legally incorrect. The decision to impose the conditions is plainly final under settled law, because it “mark[s] the ‘consummation’ of the [Department of Justice’s] decisionmaking process” on the question, and results in “‘legal consequences’” for Chicago and other JAG applicants, Bennett v. Spear, 520 U.S. 154, 177-178 (1997), such as the requirement to make certifications to the federal government, and the Hobson’s choice of whether to change longstanding City policy to obtain federal funding. See, e.g., W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7th Cir. 1998) (“‘The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.’”); Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir. 1992) (decision final where plaintiff faces “a dilemma: comply with a rule that harms [it] … or violate the rule at the risk of incurring a heavy
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penalty”). That the Department of Justice (“Department”) may later determine whether Chicago complies with the new policy conditions does not make the decision to impose those conditions any less final. See U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1816 (2016) (availability of “distinct final agency action” “‘should not … support an implication of exclusion as to other[]’ agency actions”); see also, e.g., Safari Club Int’l v. Jewell, 842 F.3d 1280, 1289-1290 (D.C. Cir. 2016) (policy banning repatriation of hunting trophies reviewable prior to any permit application).1
The Attorney General does not even attempt to distinguish the recent decision by the Eastern District of Pennsylvania holding that his imposition of these conditions is reviewable now, City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 615 (E.D. Pa. 2017) (appeal filed Jan. 18, 2018); since his last filing, an additional district court has reached the same conclusion, see California ex rel. Becerra v. Sessions, 2018 WL 1156774, at *11-12 (N.D. Cal. Mar. 5, 2018); see also City of Philadelphia v. Sessions, 2018 WL 1305789, at *6-7 (E.D. Pa. Mar. 13, 2018) (reaffirming finality holding). And the cases the Attorney General cites (at 3-4) for his theory of final agency action provide him no support. Each involved an agency investigation into whether past conduct violated preexisting legal rules—not the announcement of a new rule governing future conduct. See Abbs, 963 F.2d at 921 (investigation into whether scientist had misrepresented data in violation of preexisting rules); see also Acker v. EPA, 290 F.3d 892, 894-895 (7th Cir. 2002) (investigation into compliance with preexisting asbestos regulations); Jerome Milton, Inc. v. FTC, 734 F. Supp. 1416, 1421-1422 (N.D. Ill. 1990) (investigation into alleged deceptive advertising). These cases did not involve “an official agency pronouncement with the effect of law requiring plaintiffs to take any action,” id. at 1422, i.e., the type of agency action typically considered final and reviewable. And that is precisely what Chicago is challenging: a new legal requirement from the Department that seeks to coerce the City into 1 The Attorney General (at 3) suggests that agency action on a grant is not final until the funds are disbursed, but cites in support only dicta from Rattlesnake Coalition v. EPA, 509 F.3d 1095 (9th Cir. 2007), which found no final agency action because Congress is not an “agency” for APA purposes. See id. at 1103.
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changing its immigrant-friendly community-policing policy on pain of losing longstanding formula grant funds.2 The decision challenged here is final.
B. The Notice and Access Conditions Are Ultra Vires On the merits, summary judgment should be granted as to the notice and access conditions for the reasons already stated by this Court (which are now before the Seventh Circuit on appeal) and by the court in Philadelphia, 280 F. Supp. 3d 616-617. The Attorney General acknowledges that he has no authority to impose the conditions unless authorized by Congress. Opp. 4-5; see also City of Arlington v. FCC, 569 U.S. 290, 297 (2013). And he cannot dispute the fundamental proposition that Congress’s grant of authority must be “unmistakably clear in the language of the statute” if it “upset[s] the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Those principles are fatal to the notice and access conditions. As before, the Attorney General identifies no provision of the JAG statute authorizing either condition; rather, his only asserted authority is 34 U.S.C. § 10102(a)(6), a provision outside the JAG law describing the “duties and functions” of the Assistant Attorney General (“AAG”). And this argument still suffers from the same overarching flaw: It is inconsistent with the plain text of § 10102(a)(6). In relevant part, § 10102(a)(6) provides that the AAG may “exercise such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for
2 Accordingly, the Attorney General’s further argument (at 3) that Chicago has not even identified “agency action” fails. “[T]he word ‘action’ [in ‘agency action’] … is meant to cover comprehensively every manner in which an agency may exercise its power.” Whitman v. Am. Trucking Assocs., 531 U.S. 457, 478 (2001). The full definition of “agency action” (omitted from the Attorney General’s brief) “includes the whole or a part of an agency rule … or the equivalent … thereof.” 5 U.S.C. § 551(13) (emphasis added). And a “rule” includes “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement … or prescribe law or policy.” Id. § 551(4). These definitions easily cover the adoption of a nationwide policy imposing new conditions on a widely-used local law enforcement grant program.
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formula grants.” In other words, § 10102(a)(6) authorizes the AAG to exercise only whatever power is vested in him or the Attorney General elsewhere by statute, and does not independently grant any authority at all. That is the only possible interpretation of the text in light of the use of the word “including,” because “[w]hatever follows the word ‘including’ is a subset of whatever comes before.” Epsilon Elecs. v. U.S. Dep’t of Treasury, 857 F.3d 913, 922 (D.C. Cir. 2017); see also Gaffney v. Riverboat Servs. of Ind., 451 F.3d 424, 459 (7th Cir. 2006) (items following “including” are merely “illustrative” of the set of things described before it).
This Court has already resolved the question against the Attorney General, see Dkt. 78 at 1719, and his new embellishments during this round of briefing change nothing because the plain text of § 10102(a)(6) is clear. See, e.g., River Road Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 649 (7th Cir. 2011) (if text is unambiguous, courts “will not conduct further inquiry into its meaning”). But even considering these arguments, they fail on their own terms.
First, the Attorney General (at 6-7) appeals to legislative history. He points out that the “special conditions” language on which he relies was added as part of the same legislation that created the JAG program, but that does not help his position. Congress chose to structure the JAG program as a formula grant, to provide no authority within the JAG statute to impose across-theboard substantive conditions, to limit the Attorney General’s discretion to “reserv[ing] not more than 5 percent” of JAG funds to address “extraordinary increases in crime” or to “mitigate significant programmatic harm,” 34 U.S.C. § 10157(b) (emphasis added), and to expressly tie JAG funding to specific federal policy objectives, e.g., id. § 20927(a); see also infra pp. 9-10. Those carefully articulated legislative choices regarding the administration of JAG funds belie any intent to give the AAG carte blanche to impose substantive policy conditions on the JAG program. Nor does the Attorney
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General’s citation (at 7) to a passing reference to “special conditions” from a single sentence of a massive House Report change that analysis.3
Second, the Attorney General also argues (at 6-7) that under Chicago’s (and this Court’s) reading of the statute, the grant-conditioning language in § 10102(a)(6) is superfluous. But every “including” clause is superfluous in the sense that it serves to illustrate rather than perform independent substantive work. See Gaffney, 451 F.3d at 459. And in any event, it is the Attorney General’s interpretation that risks rendering vast swaths of statutory text superfluous: On his view, there is no need for the specific, limited grants of authority in the JAG statute itself, such as the authority to condition grants on submission of certain “data, records, and information,” 34 U.S.C. § 10153(a)(4), or on compliance with a mandatory “program assessment component,” id. § 10152(e), or to incrementally reduce Byrne JAG funds for jurisdictions that fail to comply with certain specific federal statutes, id. § 60105(c)(2); see also infra p. 9.
Third, the Attorney General argues (at 7-8) that Chicago’s reading of § 10102(a)(6) “does not comport” with the Department’s past imposition of various conditions on JAG funds, such as “human subjects research,” “conditions related to information-sharing and privacy protection,” “training,” or conditions prohibiting “purchas[ing] military-style equipment” with grant funds. As an initial matter, the Attorney General is wrong to suggest that those conditions were imposed “[w]ithout any tie to a specific statutory direction.” Id. Each was at least arguably authorized by Congress. See 42 U.S.C. § 300v-1 (providing that agency shall engage in notice and comment rulemaking regarding human research); 34 U.S.C. § 10231(c) (providing that “[a]ll criminal intelligence systems” funded by JAG program among others shall conform to information-sharing
3 Moreover, the conditions at issue here are not “special conditions” at all. In fact, “special conditions,” according to regulations that existed at the time § 10102(a)(6) was passed, is a term of art that refers to individualized conditions imposed on high-risk grantees, as opposed to “general conditions” applicable to all. See 28 C.F.R. § 66.12; accord Federal Grant Practice, § 25.4-14; see also Amici Br. of States, Dkt. 166, at 8-9 (discussing term “special conditions”).
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and privacy standards); id. § 10153(b)(1) (requiring Attorney General to provide technical assistance and training for JAG recipients); id. § 10152(d) (“no funds … may be used … to provide … vehicles … luxury items … or any similar matters”). And even if some unauthorized conditions previously had been imposed “without objection,” Opp. 7, two wrongs do not make a right. The Department “‘may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.’” See S.E.C. v. Sloan, 436 U.S. 103, 119 (1978) (quoting FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973)). The notice and access conditions should be permanently enjoined.
C. The Compliance Condition Is Ultra Vires This Court should also permanently enjoin the compliance condition. The Attorney General premises his authority to impose the compliance condition on a single provision of the JAG statute that requires grant applications to certify “that … the applicant will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5). The issue—which this Court addressed once in the likelihood-of-success context—is whether 8 U.S.C. § 1373, an immigration law having nothing to do with federal grants that prohibits restricting certain information sharing, is an “other applicable Federal law[]” within the meaning of the JAG statute. Section 1373 is not an “other applicable Federal law[]” under established canons of statutory interpretation, as discussed below. And as with the notice and access conditions, federalism principles bear crucially on this question. “[U]nmistakably clear” congressional authorization, Gregory, 501 U.S. at 460, is especially important where Congress has attempted to “regulate areas traditionally supervised by the States’ police power.” Gonzalez v. Oregon, 546 U.S. 243, 274 (2006). The Attorney General wrongly contends (at 9-10) that federalism concerns are irrelevant here. But federal grant conditions necessarily implicate the federal/state balance of power. E.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (powers accorded to federal government, including the power to “tax and spend” and “condition” funds, “must be read carefully to avoid creating a general
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federal authority akin to the police power,” upending the federalist design). And the conditions challenged here, whose express purpose is conforming local and state law to federal policy priorities, by definition disturb that balance. In light of federalism principles, the better reading is that § 10153(a)’s “other applicable Federal laws” language is narrow in scope, and does not include § 1373. Summary judgment should be granted.
1. Section 1373 is not an “other applicable Federal law[]” because it has nothing to do with federal grants
This Court has previously acknowledged that § 10153(a) is susceptible to multiple “plausible” interpretations, including Chicago’s interpretation. Dkt. 78 at 21. Indeed, § 10153(a) contains a key ambiguity: the referent of the phrase “other applicable Federal laws.” There are two options: As Chicago has argued, § 10153(a) might refer to laws “applicable” to grantees as grantees. See Dkt. 152 at 6-9. Or, as the Attorney General claims (at 8), it might refer to any Federal law, regardless of context, that “independently … appl[ies] to Byrne JAG grantees.”
The Attorney General attempts (at 8-9) to brush aside Chicago’s reading on the theory that courts always construe the term “applicable” to have the “broad[est]” possible “reach.” That is wrong. As with any statutory term, see Ali v. Fed’l Bureau of Prisons, 552 U.S. 214, 227-228 (2008), courts construing the term “applicable” in other statutes have emphasized that its meaning must “be determined … by reading the term in the context of the surrounding language and of the statute as a whole.” City of New York v. Beretta USA Corp., 524 F.3d 384, 400 (2d Cir. 2008) (rejecting broadest conceivable reading of “applicable”); see also Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1286 n.9 (C.D. Cal. 2006) (“[T]he Court fails to see how [other] courts’ respective interpretations of completely unrelated statutes bear[] any relevance to the meaning of the word ‘applicable’ in [this] specific context.”). Here, Congress used limiting language—“the provisions of this part [i.e., the JAG statute] and all other applicable Federal laws,” 34 U.S.C. § 10153(a)(5)(D)—which indicates a limited meaning of “applicable” that encompasses only laws that apply to grantees as grantees. See, e.g., Circuit City
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Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (phrase “any other class of workers” should be “controlled and defined by reference to” the preceding terms, “seamen” and “railroad employees” (quotation marks omitted)); see also Dkt. 152 at 6-7.4 The broader statutory context confirms that construction: Subsection 10153(a) is part of a section titled “Applications” that is focused on grant application standards and technical requirements, and more broadly the JAG statute (i.e., “this part”) contains rules defining and governing a grant program. See Ali, 552 U.S. at 227-228 (considering “whole context” of the text at issue). The surrounding language and the statute as a whole indicate that “applicable” here most naturally means “applicable to grants and grant programs.”
Other contextual clues likewise favor Chicago’s narrower reading. Congress made JAG funding contingent on compliance with three specific statutes and defined limited consequences for noncompliance. E.g., 34 U.S.C. § 60105(c)(2) (requiring “not more than a 10-percent reduction” in JAG funds for non-compliance with Death in Custody Reporting Act); see also id. § 20927(a); id. § 30307(e)(2)(A). The Attorney General’s interpretation of “other applicable Federal laws” as conditioning 100% of JAG funding on compliance with every independently applicable law would render these provisions superfluous and override Congress’s nuanced treatment of JAG funds.
And Chicago’s limited reading of “applicable” rings truer still when read against “the backdrop of what Congress was attempting to accomplish.” Reves v. Ernst & Young, 494 U.S. 56, 6263 (1990) (adopting limited meaning of term “any note” consistent with Congress’s purposes); accord Beretta, 524 F.3d at 401-402 (considering legislative intent as well as text and stating that “the term ‘applicable’ must be examined in context”). Congress enacted the JAG statute to “give State and
4 The Attorney General argues that the relevant language in § 10153(a) is disjunctive, and that the ejusdem generis canon applies to lists rather than disjunctive phrases. Opp. 8 (citing Ali, 552 U.S. at 225). But courts do apply the canon to residual clauses where (as here) doing so makes sense in context, e.g., Falkenberg v. Alere Home Monitoring, Inc., 2014 WL 5020431, at *3 (N.D. Cal. Oct. 7, 2014). By contrast, and unlike in this case, using ejusdem generis did not make sense in Ali because “no relevant common attribute immediately appear[ed] from the [preceding] phrase.” 552 U.S. at 225.
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local governments more flexibility to spend [federal] money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. 109-233, at 89 (2005). JAG funding was thus designed to empower local governments by deferring to local policy choices. And this understanding is confirmed by 34 U.S.C. § 10228(a), which prohibits “any … Act” of Congress from “be[ing] construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.”5 A limited reading of “other applicable Federal laws” thus preserves Congress’s intent.
A limited reading is also required by key federalism principles. Under Chicago’s reading, § 10153(a) merely requires following the rules for federal grantees, and thus presents no major change in the ordering of federal and local power. But the Attorney General’s expansive reading would make any legal dispute or policy disagreement between federal and local governments a potential ground for withholding formula grant funds. Turning the JAG program into a tool for top-down coercion cannot be what Congress intended, see H.R. Rep. 109-233, at 89, and it surely is not a result that Congress made “unmistakably clear in the language of the statute.” Gregory, 501 U.S. at 460. That is especially problematic here, where the federal government’s target is local law enforcement. E.g., Gonzalez, 546 U.S. at 274; accord Bond v. United States, 134 S. Ct. 2077, 2089 (2014) (“[T]he clearest example of traditional state authority is the punishment of local criminal activity.”).
5 The Attorney General downplays (at 9) Congress’s repeated rejection of grant-conditioning legislation, suggesting that Congress perhaps preferred to leave the issue to his discretion. But Congress could not have believed that the Attorney General already had such discretion, as one of the failed bills would have given him that exact discretion to withdraw local grant funds from cities that do not comply with § 1373. See Preventing the Catch and Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong., sec. 3(b)(3) (2015). And contrary to the Attorney General’s arguments, federal courts, including the Supreme Court, have often relied on rejected legislation as evidence of statutory meaning when addressing the scope of executive authority. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586 (1952); Am. Health Care Ass’n v. Burwell, 217 F. Supp. 3d 921, 935-936 (N.D. Miss. 2016).
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Beyond these fatal federalism problems, the absurd consequences of the Attorney General’s construction make it implausible. For one, it would create massive new liability traps for state and local governments by requiring every JAG applicant to certify compliance with all “federal laws that independently do apply to Byrne JAG grantees.” Opp. 8. Broadening § 10153’s certification requirement thus risks expanding potential False Claims Act liability for JAG grantees, contravening both the False Claims Act itself and the JAG statute. Cf. Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002, 2004 (2016) (under False Claims Act, federal government cannot condition payment on compliance with every one of the “thousands of complex statutory and regulatory provisions” to which payee is subject). And conditioning grant funds on compliance with every independently applicable federal law would also violate the germaneness requirements of the Spending Clause, because numerous requirements that fall upon state or local governments have nothing at all to do with local law enforcement or any other purpose of the JAG program. E.g. 16 U.S.C. § 2601 et seq. (procedural requirements for municipal utilities); 26 U.S.C. § 3402 (requiring employers, including municipal employers, to withhold income taxes). These absurdities are undoubtedly why the Department has never—to this day—followed the all-laws interpretation the Attorney General now advances and why it previously applied Chicago’s approach, requesting certification of compliance with only laws applicable to grantees as grantees. See Dkt. 152 at 7 & n.3; Opp. 9, 20 (not disputing Department’s past practice).
Perhaps to evade these cascading problems with his approach, the Attorney General appears to argue (at 7-8) in the alternative that § 10153(a)(5)(D) grants him the discretion to define which laws are “applicable” and which are not, selecting from a menu of “the corpus of federal laws that actually do apply, independently, to Byrne JAG grantees.” But recasting his definition of “applicable” to refer to the same overbroad body of laws, while also granting him a discretionary on/off switch, solves none of the problems just mentioned. Indeed, it exacerbates the tension with
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the JAG program’s text and purpose because such discretion is inconsistent with the mandatory nature of § 10153 (“Such application shall include”) and exceeds the limited discretion Congress envisioned for the Attorney General: to specify “the form” (but not the content) of the JAG application and the certification of compliance. 34 U.S.C. § 10153(a), (a)(5). And it creates a new problem: Using grant certification to selectively enforce independent federal laws that contain no enforcement mechanism (like § 1373) contravenes the Supreme Court’s admonition against creating an enforcement mechanism where none exists in the statute. See Alexander v. Sandoval, 532 U.S 275, 291 (2001) (“Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”).
This Court previously found Chicago’s reading “plausible,” but declined to hold that Chicago was likely to succeed on the merits as to the compliance condition for purposes of a motion for emergency relief. Dkt. 78 at 21-24; accord Philadelphia, 280 F. Supp. 3d at 619 (question is a “close call”). But the Court did not focus on the limiting effect of the word “other” in the statutory text, or address the federalism clear-statement rule, or consider the cases narrowly construing the word “applicable,” or account for the absurd consequences of turning every federal law into a condition on JAG funding (at the Attorney General’s option or otherwise). These arguments have now been fully aired, and they weigh in Chicago’s favor. Summary judgment should be granted.
2. Section 1373 is not an “applicable Federal law[]” because it is unconstitutional
There is yet another reason to grant summary judgment to Chicago on the compliance condition: Section 1373 commandeers state and local governments.
As previously explained, § 1373 violates the Tenth Amendment by depriving Chicago of the “critical alternative” guaranteed by the Constitution and its federalist structure: the freedom to “decline to administer the federal program.” New York v. United States, 505 U.S. 144, 177 (1992). See Dkt. 152 at 8-9, 22-23. The Attorney General responds (at 17) that commandeering protections do not apply to grant conditions. But his own cases undermine the point, see Agency for Int’l Dev. v. All.
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for Open Soc’y Int’l, Inc., 570 U.S. 205, 214-215 (2013) (explaining that “a funding condition can result in an unconstitutional burden on First Amendment rights” if it “seek[s] to leverage funding to regulate speech outside the contours of the federal program itself”), and in any event, Chicago’s argument has always been a direct challenge to § 1373, because only valid and constitutional laws are “applicable” under any definition of the word. Cf. Branch v. Smith, 538 U.S. 254, 281 (2003) (unconstitutional state law could not be applied under phrase “as state law requires”).
The Attorney General also argues (at 18) that § 1373 “[m]erely protect[s] the transmission of information to federal authorities.” That assertion is directly contradicted by the Attorney General’s public statement that § 1373 would be used to work a “reordering of [Chicago’s] law enforcement practice.” SUMF ¶ 26. And in any event, it ignores that § 1373 interferes with the governmentofficer relationship, a critical component of state and local sovereignty, in a way that extends far beyond information sharing. See, e.g., Printz v. United States, 521 U.S. 898, 931 (1997) (“To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance.”). Suppose, for example, that a police officer seeks to assist ICE with civil immigration enforcement to the exclusion of his other duties, spending all of his time combing through city files and reporting to ICE. Under the Attorney General’s theory, the City would be powerless to redirect the officer’s priorities. That kind of “reordering” is precisely what the Tenth Amendment, and anti-commandeering doctrine, guard against.
D. The Court Should Issue A Nationwide Injunction The Attorney General has offered no substantive response to Chicago’s argument that it meets all four requirements for a permanent injunction, and thus concedes the point. Instead he argues (at 10-12) only that any injunction here should not be nationwide in scope. But this Court already considered the appropriate scope of relief here both in issuing its preliminary injunction and in denying the Attorney General’s motion to stay the nationwide scope of the Court’s injunction. In
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both instances, the Court correctly concluded that a nationwide injunction is appropriate because there is “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Dkt. 78 at 41; see Dkt. 98 at 5. The issue is now before the Seventh Circuit. In the meantime, this Court should issue a nationwide permanent injunction.
The Attorney General’s primary argument against a nationwide injunction is the same as before: He argues that Article III prevents Chicago from obtaining relief that incidentally benefits individuals not before the Court. As this Court has already recognized, that position misunderstands basic principles of Article III standing. There is no question that Chicago has standing “for each claim [it] seeks to press” in this case. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351-352 (2006). Article III imposes no additional constraint on the scope of the injunctive relief that a court may order. Rather, federal courts have the inherent power to craft and issue injunctions that address the harm demonstrated—i.e., “the nature of the … remedy is to be determined by the nature and scope of the constitutional violation.” Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995). Here, the “nature and scope of the constitutional violation” is a single set of unlawful grant conditions promulgated by a single federal actor. Enjoining them is the appropriate relief in this case.
Any other conclusion would contradict decisions of the Supreme Court, see Trump v. IRAP, 137 S. Ct. 2080 (2017), the Seventh Circuit, see Decker v. O’Connell, 661 F.2d 598, 618 (7th Cir. 1980), and other circuits, see Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015). For example, in IRAP, the Supreme Court left in place portions of a nationwide injunction. The dissenting Justices made the same argument that the Attorney General advances here—that “a court’s role is to provide relief only to [the] claimant[].” 137 S. Ct. at 2090 (Thomas, J., dissenting). But the majority upheld the injunction “with respect to parties similarly situated to [the plaintiffs].” Id. at 2088. The Supreme Court has thus “clearly rejected” the Attorney General’s argument. Dkt. 98 at 8-9.
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Rather than addressing those precedents or this Court’s prior reasoning, the Attorney General relies heavily (at 11) on McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997). McKenzie involved fact-specific, as-applied due process challenges to a demolition ordinance. In that context, the Seventh Circuit held that the plaintiffs “lack[ed] standing to seek … relief that benefit[ed]” parties not before the court. Id. at 555. That holding—that a plaintiff making an as-applied challenge cannot obtain an injunction that bars all applications of the challenged law—is off-point here. Indeed, the Attorney General sought a stay of the preliminary injunction in the Seventh Circuit based largely on McKenzie, and that court rejected his application. See Mot., No. 17-2991, Dkt. 8, at 2, 10-14 (7th Cir. Oct. 13, 2017); Order, No. 17-2991, Dkt. 33 (7th Cir. Nov. 21, 2017).
Once the Attorney General’s Article III argument is cleared away, all that remains is his contention (at 12) that equitable principles counsel against imposing a nationwide injunction. But the equities here favor nationwide injunctive relief, as this Court has said. Failure to enjoin the conditions nationwide would “allow the Attorney General to impose what this Court has ruled are … unconstitutional conditions across a number of jurisdictions.” Dkt. 98 at 11. That is especially inequitable because there is “no reason to think that the legal issues” differ from place to place. Dkt. 78 at 41. And “judicial economy counsels against” requiring a proliferation of challenges to the same conditions. Dkt. 98 at 11. This Court should hold, again, that nationwide relief is appropriate. II. THE COURT SHOULD DECLARE THAT CHICAGO COMPLIES WITH § 1373
The Attorney General offers three arguments against issuing a declaration that Chicago complies with § 1373. None succeeds.
A. A Declaratory Judgment Is Warranted As an initial matter, the Attorney General argues (at 20-21) it would be imprudent to issue a declaratory judgment while the Department is still considering Chicago’s certification of
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compliance.6 But the Supreme Court has recently questioned the “continued vitality” of the prudential ripeness doctrine, Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014), and in any event, this action, which presents a purely legal question and ongoing harms to Chicago, would satisfy any prudential concerns, see New West v. City of Joliet, 2012 WL 366733 (N.D. Ill. Jan. 30, 2012) (rejecting prudential ripeness argument founded on parallel administrative proceeding). Deferring adjudication of Chicago’s claims to the Department’s long-delayed decisionmaking process while the Attorney General withholds JAG and now COPS funds would risk multiplying the harm to Chicago—which still must certify compliance under penalty of perjury with a law (§ 1373) that the Attorney General is continuously reinterpreting—and to Chicagoans, who urgently need the City to expand ShotSpotter technology (with JAG funds) and hire additional officers (with COPS funds).
More fundamentally, the Attorney General ignores the other reason a declaratory judgment is needed: because he and the President have threatened suit against jurisdictions, like Chicago, that they believe are violating § 1373—a threat that in no way depends on the Department’s administrative process. See Dkt. 152, at 12-13; see also Dkt. 157-11 at 2, 8, 22. Recent events prove just how real a threat this is. Just weeks ago, the Attorney General filed suit against the State of California, its Governor, and its Attorney General alleging that some of California’s laws violate § 1373. See Compl., United States v. California, No. 2:18-at-00264 (E.D. Cal. Mar. 6, 2018). Removing this “Damoclean threat of impending litigation” is a quintessentially proper basis for a declaratory judgment. Med. Assur. Co. v. Hellman, 610 F.3d 371, 377 (7th Cir. 2010).
B. No Discovery Is Necessary The Attorney General also argues (at 23-24) that a declaration should not issue now because he needs discovery, invoking Rule 56(d) of the Federal Rules. But he fails to describe in any detail
6 The Attorney General has now abandoned his other two threshold arguments against declaratory relief. See Dkt. 139 at 18; Dkt. 152 at 12-13 (identifying the flaws in those arguments).
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what discovery he might need, or where such discovery would end, raising the specter of unfocused, asymmetric discovery if the Court were to grant his request. Fortunately, though, Chicago’s declaratory judgment claim presents a pure question of law, rendering Rule 56(d) inapplicable. See Davis v. G.N. Mortg. Corp., 396 F.3d 869, 886 (7th Cir. 2005) (“Rule 56(d) is not a shield that can be raised to block … summary judgment without even the slightest showing … [that the] opposition is meritorious.”). Rule 56(d) cannot forestall summary judgment where the discovery sought is immaterial. See Grayson v. O’Neill, 308 F.3d 808, 816 (7th Cir. 2002); see also W. Bend Mut. Ins. Co. v. Procaccio Painting & Drywall Co., 928 F. Supp. 2d 976, 982 (N.D. Ill. 2013) (rejecting Rule 56(d) request where discovery “would have no bearing” on issues before the Court). And here, everything the Attorney General purports to seek is either immaterial or undisputed and already in the record.
On the one hand, with respect to the actual text and scope of City policies, there are no more facts to develop, and the legal question is ripe for decision. The text of Chicago’s Welcoming City Ordinance (“WCO”) is undisputed. See SUMF ¶¶ 5-8; RSUMF ¶¶ 7-8. And the record contains the only other City policy that provides any instruction to Chicago police officers regarding their enforcement or non-enforcement of federal immigration law, namely a single police department special order, see Dkt. 157-6. An unrebutted declaration confirms that the City has no other relevant policies, see Kaup Decl., Dkt. 156; see also SUMF ¶ 10, and in any event, Chicago police directives are all publicly available (http://directives.chicagopolice.org/directives/).7 Nothing more is needed. See, e.g., Transport Leasing/Contract, Inc. v. Methvin, 1992 WL 67846, at *2 (N.D. Ill. Mar. 24, 1992) (party need not “prove a negative,” i.e., the non-existence of documents).8
7 In addition, the Attorney General had already requested and received before filing his response to Chicago’s summary judgment motion, “[a]ll documents reflecting any orders, directives, instruction, or guidance to [Chicago] law enforcement employees … whether formal or informal” pursuant to a request the Department made outside of the litigation. See https://www.justice.gov/opa/press-release/file/1028311/download. 8 Indeed, the Attorney General appears to concede this point; neither his brief nor the declaration that Rule 56(d) requires (Dkt. 169), assert a need for more discovery to confirm whether additional relevant City
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Unable to contest that all relevant City policies are in the record, the Attorney General implies that discovery might be necessary to understand the contents of City policies. At the outset, the Attorney General has already requested and received a formal legal opinion on that very subject from the City’s Corporation Counsel, and it is in the record, see Dkt. 152 at 14. But in any event, the meaning of legislative text, and the determination of whether two pieces of text are in conflict, are legal questions for the Court. See, e.g., Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir. 2011) (interpretation of INA is a legal question); see also, e.g., Baker v. Lindgren, 856 F.3d 498, 502 (7th Cir. 2017) (interpretation of federal law and rules is a “question of law”). Thus, the Attorney General, in moving to dismiss, asked the Court to compare his new conditions to the JAG statute and § 10102(a)(6) and resolve whether the former are consistent with the latter, see Dkt. 139 at 5-9—all with no discovery into “the day-to-day reality of what is understood and practiced among the rankand-file” at the Department (or, for that matter, ICE), see Opp. 24. Similarly, Chicago’s declaratory judgment request asks this Court to consider whether City policy is consistent with § 1373.9 With no more facts to develop, this Court can now resolve that question as a matter of law.
On the other hand, while there might well be outstanding factual questions regarding the onthe-ground practices and conduct of particular Chicago police officers, such questions are immaterial to the legal issue before this Court. The Attorney General argues that such discovery might be relevant because “Section 1373 speaks … to any restriction on information-sharing by any policies exist. See Buquer v. City of Indianapolis, 2012 WL 829666, at *2 (S.D. Ind. Mar. 9, 2012). And the halfhearted statement in a different filing—his Rule 56.1 response—that he “lacks sufficient information to form a belief” on this issue and “may request discovery on it,” RSUMF ¶ 10 (emphasis added), falls far short of satisfying the requirements of Rule 56(d), let alone establishing a material fact dispute sufficient to defeat summary judgment. E.g., Dumas v. Dovenmuehle Mortg. Inc., 2005 WL 1528262, at *1 (N.D. Ill. June 23, 2005). 9 In no event should the Court accept the lopsided position that the lawfulness of Chicago’s policies depends on discovery into “the day-to-day reality of what is understood and practiced among the rank-and-file” but the lawfulness of the Attorney General’s policies does not. Indeed, absent summary judgment, Chicago’s need for discovery would be substantial; for example, to determine whether the conditions are germane to the JAG program for Spending Clause purposes, Chicago would need discovery into the facts (or lack thereof) behind the Attorney General’s assertion that his conditions somehow promote local safety or crimefighting.
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‘entity or official.’” Opp. 24 (quoting 8 U.S.C. § 1373(a)). But that gets it exactly backwards. Section 1373, in the very text quoted by the Attorney General, speaks of “officials” as separate actors from “local government entit[ies].” This lawsuit involves Chicago’s JAG money, and Chicago’s compliance with § 1373—not whether individual officers are “prohibiting” or “restricting” Chicago employees independent of, or contrary to, formal City policy. The “on-the-ground” discovery the Attorney General seeks would be relevant only if § 1373 included an expansive vicarious liability component making the City responsible for the actions of individual employees, including for mere confusion regarding the meaning of official policy.10 That interpretation would defy the actual text of the statute, and impose massive costs on local governments with nothing like the “unmistakable clarity” required by federalism principles. Indeed, such comprehensive liability would effectively impose a bevy of affirmative obligations—to train, instruct, and monitor employees—in violation of the anti-commandeering doctrine, see Dkt. 78 at 31-32, and 34 U.S.C. § 10228(a), see supra p. 12-13.11
In fact, § 1373 is a narrow and carefully worded law. It only bars “prohibiting” or “restricting” other entities or officials from taking specified actions with regard to citizenship or immigration-status information. The only way Chicago itself can prohibit or restrict its officers from sharing covered information with the federal government is by adopting policies that apply to those officers. And because Chicago’s policies are in the record, no further discovery is necessary. The delay the Attorney General seeks would only permit him to continue his improper efforts to reverse
10 The Attorney General argues (at 24) that, regarding the collection of immigration status information, Chicago’s “working practice … diverge[s] from what City policy facially contemplates.” But, even if correct, that goes only to the collection of status information. It has nothing to do with the relevant question for § 1373, namely restrictions on communications with ICE. And in any event, the Attorney General does not describe an actual divergence between policy and practice; Lieutenant Hannigan declared that it is engrained practice not to ask for status information, and, consistent with that general statement, the policy provides that officers should not seek such information, with a few exceptions. Compare Dkt. 155, ¶¶ 4-5 with Dkt. 157-6. 11 The Attorney General asserts that arguments concerning whether § 1373 requires the City to affirmatively instruct its employees are moot, because Chicago has already done so once. Opp. 21 n.10. That is wrong; at a minimum, if § 1373 requires Chicago to communicate its interpretation of the WCO, then Chicago might well be subject to a continuing obligation to make subsequent communications as it hires new employees.
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Chicago’s chosen law enforcement policies by withholding JAG and COPS funds. The Court should reject this gambit.
C. Chicago Complies With § 1373 On the merits, a declaratory judgment should issue, because Chicago’s policies comport with § 1373. The Attorney General (at 21-22) trains his fire on a single provision of the WCO (§ 042), effectively conceding that § 020 and § 030 pass muster. Sections 020 and 030 should therefore be declared compliant with § 1373. And as for § 042, the Attorney General’s arguments fail. Section 042 limits Chicago police from sharing information regarding a detainee’s custody status or release date. See Dkt. 157-4. Section 1373, however, prohibits only restrictions on sharing “information regarding citizenship or immigration status.” See Dkt. 152 at 15-17. The Attorney General has now abandoned any argument that this language itself encompasses custody status or release date, relying instead on loose statements about the structure and purpose of the INA. But statutory interpretation begins, and in this case ends, with the text. See Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) (interpretation “must begin with the language employed by Congress”); Davel v. Sullivan, 902 F.2d 559, 562 (7th Cir. 1990) (“The words of the statute, not the words of the legislative history, control statutory interpretation.”); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“the authoritative statement is the statutory text”). Here, the text is clear and must be given effect: It covers only two specific types of information—“immigration status” and “citizenship”— and not, as the Attorney General has argued, any “information that assists the federal government in carrying out its statutory responsibilities” under the INA, Dkt. 139 at 19-20. That ends the matter. As with the Attorney General’s ultra vires grant conditions, his improper leveraging of § 1373 is an affront to federalism principles, and inconsistent with the laws as Congress wrote them. This Court should declare Chicago’s policies compliant with § 1373.
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CONCLUSION For these reasons, Chicago’s cross-motion for summary judgment should be granted.

March 21, 2018
JAMIE S. GORELICK (pro hac vice) DAVID W. OGDEN (pro hac vice) ARI HOLTZBLATT (pro hac vice) ARI SAVITZKY (pro hac vice) MOLLY JENNINGS (pro hac vice) BRIDGET FAHEY* (pro hac vice) JACK STARCHER (pro hac vice) JOSHUA ABBUHL (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
DEBO P. ADEGBILE (pro hac vice) ADRIEL I. CEPEDA DERIEUX (pro hac vice) WILMER CUTLER PICKERING HALE
AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 230-8800
* Admitted to practice only in Colorado. Supervised by members of the firm who are members of the District of Columbia Bar

Respectfully Submitted,
By /s/ Edward N. Siskel EDWARD N. SISKEL Corporation Counsel of the City of Chicago
JUSTIN A. HOUPPERT Assistant Corporation Counsel SCOTT D. SPEARS Assistant Corporation Counsel 121 N. LaSalle Street, Suite 600 Chicago, IL 60602 (312) 744-0220 edward.siskel@cityofchicago.org
ANDREW W. WORSECK Chief Assistant Corporation Counsel 30 N. LaSalle Street, Suite 1230 Chicago, IL 60602 (312) 744-0220
RONALD S. SAFER MATTHEW C. CROWL NICK KAHLON TAL CHAIKEN LAURA KLEINMAN RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison Street, Suite 2900 Chicago, IL 60602 (312) 471-8700
Attorneys for the City of Chicago

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CERTIFICATE OF SERVICE On the 21st day of March, 2018, I electronically filed the foregoing brief using the Court’s CM/ECF system. Counsel for all parties are registered CM/ECF users and will be served by that system.
/s/ Edward N. Siskel EDWARD N. SISKEL

 
 Case: 17-2991 Document: 111

Filed: 04/19/2018 Pages: 49

In the
United States Court of Appeals

For the Seventh Circuit

____________________

No. 17‐2991

CITY OF CHICAGO,

Plaintiff‐Appellee,

v.

JEFFERSON B. SESSIONS III, Attorney General of the United States,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:17‐cv‐05720 — Harry D. Leinenweber, Judge.
____________________

ARGUED JANUARY 19, 2018 — DECIDED APRIL 19, 2018 ____________________

Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the “City”) and against Jefferson Beauregard Sessions III, the At‐ torney General of the United States, enjoining the enforce‐ ment of two conditions imposed upon recipients of the Ed‐ ward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG program”). See 34 U.S.C. § 10151 (formerly 42

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2

No. 17‐2991

U.S.C. § 3750). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds an‐ nually to provide for the needs of state and local law en‐ forcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient’s compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the “notice” condition mandating advance notice to federal authorities of the re‐ lease date of persons in state or local custody who are be‐ lieved to be aliens, and the “access” condition which re‐ quired the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding award‐ ed under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General’s motion to stay the nationwide scope of the injunction, and this court denied the stay on ap‐ peal. The Attorney General now appeals that preliminary injunction.
Our role in this case is not to assess the optimal immigra‐ tion policies for our country; that is not before us today. Ra‐ ther, the issue before us strikes at one of the bedrock princi‐ ples of our nation, the protection of which transcends politi‐ cal party affiliation and rests at the heart of our system of government—the separation of powers.
The founders of our country well understood that the concentration of power threatens individual liberty and es‐

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No. 17‐2991

3

tablished a bulwark against such tyranny by creating a sepa‐ ration of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authori‐ zation or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforce‐ ment. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigra‐ tion policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.
I.
The path to this case began in 2006, which was both the year that the City enacted its Welcoming City ordinance, and the year that the federal government first established the Byrne JAG program. For many years, the two coexisted without conflict. In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with 8 U.S.C. § 1373—which was intended to address “sanctuary cities” and prohibit federal, state or local government officials or entities from restricting the exchange of information with the

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immigration authorities regarding citizenship or immigra‐ tion status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctu‐ ary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at https://www.congress.gov). see also Annie Lai & Christo‐ pher N. Lasch, Crimmigration Resistance and the Case of Sanc‐ tuary City Defunding, 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).
Determined to forge a different path in immigration en‐ forcement, the President on January 25, 2017 issued an Exec‐ utive Order directing the Attorney General and the Depart‐ ment of Homeland Security (DHS) Secretary, in their discre‐ tion and to the extent consistent with law, to ensure that sanctuary jurisdictions are not eligible to receive Federal grants except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. Exec. Order No. 13,768, 82 Fed. Reg. 8799 at § 9(a) (Jan. 25, 2017). That Executive Order was challenged in court and prelimi‐ narily enjoined by a district court on April 25, 2017—and subsequently permanently enjoined. County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017); County of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017). Shortly thereafter—in the face of the failure of Congress to pass such restrictions and the issues with the legality of the Executive Order—on July 25, 2017, the Attorney General pursued yet

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another path to that goal and issued the conditions for recip‐ ients of the Byrne JAG funds that are challenged here.
The Byrne JAG program is the primary provider of fed‐ eral criminal justice funding to state and local governments. The funds have been used to meet a wide range of needs for those law enforcement entities, including funding the acqui‐ sition of body cameras and police cruisers, and support for community programs aimed at reducing violence. The City, which challenges the new conditions imposed, had targeted the fiscal year 2017 funds for several purposes including ex‐ pansion of the use of ShotSpotter technology to allow offic‐ ers to quickly identify the location of shooting incidents and deploy a more precise response. Under the new provisions imposed by the Attorney General, state and local governing authorities who were awarded grants under the Byrne JAG program could not receive any of the funds unless they complied with the new conditions.
Specifically, the Attorney General imposed “notice,” “ac‐ cess,” and “compliance” conditions, on Byrne JAG grant re‐ cipients, only the first two of which are at issue in this ap‐ peal. The “notice” and “access” conditions require that for local governments, throughout the period for the award:
A. A local ordinance, ‐rule, ‐regulation, ‐policy, or ‐practice (or an applicable State stat‐ ute, ‐rule, ‐regulation, ‐policy, or ‐practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access [to] a local‐government (or local‐government‐ contracted) correctional facility for the purpose of per‐ mitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as

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to such individuals’ right to be or remain in the United States.
B. A local ordinance, ‐rule, ‐regulation, ‐policy, or ‐practice (or an applicable State stat‐ ute, ‐rule, ‐regulation, ‐policy, or ‐practice) must be in place that is designed to ensure that, when a local‐ government (or local‐government‐contracted) correction‐ al facility receives from DHS a formal written request au‐ thorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facili‐ ty will honor such request and—as early as practicable (see ʺRules of Constructionʺ incorporated by para. 4.B. of this condition)—provide the requested notice to DHS.
OJP Form 4000/2 (Rev. 4‐88); https://www.bja.gov/Jag/pdfs/SampleAwardDocument‐ FY2017JAG‐Local.pdf at 19 (last visited 03‐20‐18).
It further provides that “[n]othing in this condition shall be understood to authorize or require … any entity or indi‐ vidual to maintain (or detain) any individual in custody be‐ yond the date and time the individual would have been re‐ leased in the absence of this condition.” Id. at 18. Identical provisions apply when the states are the grant recipients ra‐ ther than local governments. Id. Under the notice condition, grant recipients were initially required to provide 48 hours’ advance notice to the DHS as to the scheduled release date and time of any individuals in the jurisdiction’s custody suspected of immigration violations. When the City sued and sought a preliminary injunction, it argued in part that the requirement was impossible to implement in Chicago which operated only temporary lock‐up facilities and held

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the vast majority of persons for less than 24 hours, and that holding them for a longer period in order to comply would violate the Fourth Amendment of the United States Consti‐ tution. The Attorney General subsequently modified the no‐ tice condition, requiring that advance notice be provided as early as practicable. The access condition required the local authorities to provide immigration agents with access to the local detention facilities and to the individuals detained there to question such individuals.
Those conditions were inconsistent with the provisions in the Welcoming City Ordinance, and the City challenged the imposition of those conditions by the Attorney General. The Welcoming City Ordinance reflects the City’s determination that, as a City in which one out of five of its residents is an immigrant, “the cooperation of all persons, both document‐ ed citizens and those without documentation status, is essen‐ tial to achieve the City’s goals of protecting life and proper‐ ty, preventing crime and resolving problems.” Chicago Mu‐ nicipal Code, Welcoming City Ordinance, § 2‐173‐005 “Pur‐ pose and Intent.” The City recognized that the maintenance of public order and safety required the cooperation of wit‐ nesses and victims, whether documented or not, and the co‐ operation of Chicago’s immigrant communities. Id. Finally, the City concluded that immigrant community members, whether or not documented, should be treated with respect and dignity by all City employees. Id. Toward that end, the City set forth some standards for the treatment of persons within its jurisdiction, which included prohibitions on re‐ questing or disclosing information as to immigration status, and on detaining persons based on a belief as to that status or based on immigration detainers when such immigration detainer is based solely on a violation of civil immigration

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law. Id. at § 2‐173‐020, ‐030, ‐042. It also provides in § 2‐173‐ 042 that unless acting pursuant to law enforcement purposes unrelated to the enforcement of civil immigration law, no agency or agent shall permit Immigrations and Customs En‐ forcement (ICE) agents access to a person being detained or permit the use of agency facilities for investigative inter‐ views, nor can an agency or agent while on duty expend time responding to ICE inquiries or communicating with ICE as to a person’s custody status or release date. The Or‐ dinance explicitly clarifies that those provisions in § 2‐173‐ 042 do not apply when the subject of the investigation “has an outstanding criminal warrant, … has been convicted of a felony, … is a defendant … where … a felony charge is pending, … or has been identified as a known gang member either in a law enforcement agency’s database or by his or her own admission.” Id. at § 2‐173‐042(c).
The City therefore could not comply, consistent with its Ordinance, with the conditions imposed by the Attorney General on those seeking funds under the Byrne JAG pro‐ gram, and filed this suit alleging that the conditions were unlawful under the statute and unconstitutional as a viola‐ tion of separation of powers principles. In a thorough and well‐reasoned opinion, Judge Leinenweber in the district court granted the City’s motion for a preliminary injunction as to the notice and access conditions, but denied it as to the compliance condition which is not challenged in this appeal and of which we express no opinion. The district court noted that nothing in the Byrne JAG statute granted express au‐ thority to the Attorney General to impose the notice and ac‐ cess conditions, and rejected the Attorney General’s claim that a provision in a different subsection, 34 U.S.C. § 10102, could be interpreted to allow such authority. The court fur‐

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ther concluded that a nationwide preliminary injunction was required to provide full relief in this case.
II.
Underlying this case are the sometimes‐clashing interests between those of the federal government in enforcing its laws and those of the state or local government in policing and protecting its communities. Here, the federal executive branch, in the person of the Attorney General, has concluded that its interests will be best served by harnessing the local authorities to identify and to make accessible persons in their custody who are potentially in the country unlawfully, so as to facilitate efficient civil immigration enforcement. State and local law enforcement authorities, however, are concerned with maximizing the safety and security of their own communities. For some communities, those goals might be maximized by cooperating with the federal immigration authorities and assisting them in identifying and seizing un‐ documented individuals in their communities.
Other communities, such as the City in this case, howev‐ er, have determined that their local law enforcement efforts are handcuffed by such unbounded cooperation with immi‐ gration enforcement. They have concluded that persons who are here unlawfully—or who have friends or family mem‐ bers here unlawfully—might avoid contacting local police to report crimes as a witness or a victim if they fear that report‐ ing will bring the scrutiny of the federal immigration author‐ ities to their home.1 In the case of domestic violence or

1 That fear of the reach of immigration authorities would not be un‐ founded. According to the Fiscal Year 2017 ICE Enforcement and Re‐ moval Operations Report, approximately 11% of the arrested alien popu‐

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crimes of that nature, the reluctance to report that is endemic to such offenses could be magnified in communities where reporting could turn a misdemeanor into a deportation. And the failure to obtain that victim and witness cooperation could both hinder law enforcement efforts and allow crimi‐ nals to freely target communities with a large undocument‐ ed population, knowing that their crimes will be less likely to be reported. Those competing interests, between the At‐ torney General in pursuing civil immigration compliance and the state and local law enforcement authorities in ensur‐ ing the safety and security of their communities, are placed into direct conflict because the Attorney General in requiring these conditions forces the states and localities to devote re‐ sources to achieving the federal immigration goals or forfeit the funds. State and local law enforcement authorities are thus placed in the unwinnable position of either losing needed funding for law enforcement, or forgoing the rela‐ tionships with the immigrant communities that they deem necessary for efficient law enforcement
Although the City uses the term Welcoming City in its ordinance, localities which have concluded that cooperation in federal civil immigration efforts is counterproductive or simply offensive are often labeled “sanctuary” cities or states, but that term is commonly misunderstood. The term

lation had no known criminal convictions or charges, reflecting ICE’s avowed goal of expanding its efforts “to address all illegal aliens encoun‐ tered in the course of its operations.” https://www.ice.gov/sites/de‐ fault/files/documents/Report/2017/iceEndOfYearFY2017.pdf at 3‐4 (last visited 03‐20‐2018). Of those with criminal convictions, 25% were convic‐ tions for immigration violations or non‐DUI traffic offenses. Id. at 4 Table 2.

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signifies a place of refuge or protection, see e.g Merriam‐ Webster Dictionary, https://www.merriam‐webster.com/ dictionary/sanctuary, and is used for example to describe a house of worship, into which, if a person flees, law enforce‐ ment authorities commonly will not enter to forcibly remove the person. That definition has no correlation to the so‐called sanctuary cities at issue here. The City, like other “welcom‐ ing” or “sanctuary” cities or states, does not interfere in any way with the federal government’s lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal govern‐ ment. Accord City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 591, 602 (E.D. Pa. 2017). The federal government can and does freely operate in “sanctuary” localities.
And the level of refuge provided by sanctuary cities is not unbounded. For instance, the City cooperates with im‐ migration enforcement authorities for persons who pose a threat to public safety, exempting from the Ordinance inves‐ tigations involving persons for whom there is an outstand‐ ing criminal (as opposed to civil) warrant, persons convicted of or charged with a felony, or persons who are known gang members. Thus, for the persons most likely to present a threat to the community, City law enforcement authorities will cooperate with ICE officials even in “sanctuary” cities. The decision to coordinate in such circumstances, and to re‐ fuse such coordination where the threat posed by the indi‐ vidual is lesser, reflects the decision by the state and local authorities as how best to further the law enforcement objec‐ tives of their communities with the resources at their dispos‐ al.

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Moreover, as to the persons who have proven to be a threat to society such as those in longer‐term incarceration, other programs already in place would alert ICE to potential immigration issues. For instance, the “Secure Communities” program was first instituted in 2008 and reactivated in 2017 in order to carry out ICE’s enforcement priorities regarding persons in the custody of another law enforcement agency. See Official Website of DHS, https://www.ice.gov/secure‐ communities at 1. Local law enforcement agencies as a mat‐ ter of routine submit fingerprints of individuals in their cus‐ tody to the FBI for criminal background checks and, under Secure Communities, the FBI automatically forwards that information to the DHS to check the prints against its immi‐ gration databases. Id.; City of Philadelphia, 280 F. Supp. 3d at 633. According to the DHS, “ICE completed full implemen‐ tation of Secure Communities to all 3,181 jurisdictions within 50 states, the District of Columbia, and five U.S. territories on January 23, 2013.” See Official Website of DHS, https://www.ice.gov/secure‐communities at 1. With that abil‐ ity to identify undocumented individuals, at least as to those serving prison sentences for whom the pressure of time and the possibility of a quick release are not issues, ICE could procure a judicial warrant and obtain a transfer of custody.
III.
To establish its entitlement to preliminary relief, the City must demonstrate that “(1) without such relief, [it] will suf‐ fer irreparable harm before [its] claim is finally resolved; (2) [it] has no adequate remedy at law; and (3) [it] has some likelihood of success on the merits.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017). If that burden is met, the court must weigh the harm that the plaintiff will suffer absent an

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injunction against the harm to the defendant from an injunc‐ tion, and consider whether an injunction is in the public in‐ terest. Id.; Higher Soc’y of Indiana v. Tippecanoe Cty., Indiana, 858 F.3d 1113, 1116 (7th Cir. 2017). The district court weighed all of those factors and granted the preliminary in‐ junction as to the notice and access conditions, denying it as to the compliance condition. On this appeal from the grant of the preliminary injunction as to those two conditions, we ask only whether the district court abused its discretion. Har‐ lan, 866 F.3d at 758. In the absence of any clear error of fact or law, we accord great deference to the district court’s weighing of the relevant factors. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 896 (7th Cir. 2001).
With respect to the preliminary injunction factors, the At‐ torney General challenges only the district court’s conclusion as to the likelihood of success on the merits, and the scope of the preliminary injunction. The district court held that the Attorney General lacked the statutory authority to impose the notice and access conditions, and consequently the ef‐ forts to impose them violated the separation of powers doc‐ trine and were ultra vires. Dist. Ct. at 19.
In considering on appeal the likelihood of success on the merits, it is necessary to focus narrowly on the dispositive question and to avoid the invitation of the parties to weigh in on broader policy considerations. For instance, the Attor‐ ney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring. First, nothing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immi‐ gration authorities. The only conduct at issue here is the re‐

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fusal of the local law enforcement to aid in civil immigration enforcement through informing the federal authorities when persons are in their custody and providing access to those persons at the local law enforcement facility. Some localities might choose to cooperate with federal immigration efforts, and others may see such cooperation as impeding the com‐ munity relationships necessary to identify and solve crimes. The choice as to how to devote law enforcement resources— including whether or not to use such resources to aid in fed‐ eral immigration efforts—would traditionally be one left to state and local authorities. Whether the conscription of local and state law enforcement for federal immigration enforce‐ ment through the sword of withholding federal funds pre‐ sents other Constitutional concerns is not before us. See gen‐ erally Nat. Federation of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012) (noting, for example, that the Constitution may be implicated where “’the financial inducement offered by Congress’ was ‘so coercive as to pass the point at which pressure turns into compulsion’”); Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987). This appeal turns on the more fundamental question of whether the Attorney General possessed the authority to impose the conditions at all.
The Attorney General also complains that “[n]othing in the statute supports the counterintuitive conclusion that ap‐ plicants can insist on their entitlement to federal law en‐ forcement grants even as they refuse to provide the most basic cooperation in immigration enforcement, which the Attorney General has identified as a federal priority.” Ap‐ pellant’s Brief at 17. In fact, throughout the briefs in this case, the Attorney General is incredulous that localities receiving federal funds can complain about conditions attached to the

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distribution of those funds. But that repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch. Congress may, of course, delegate such authority to the Executive Branch, and indeed the case today turns on whether it did so here, but the Exec‐ utive Branch does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.
In fact, the Attorney General otherwise acknowledges that limitation when addressing the legal issues here. The Attorney General does not claim to possess inherent execu‐ tive authority to impose the grant conditions, and instead recognizes that the authority must originate from Congress.
We turn, then, to that core issue in the Attorney General’s challenge to the preliminary injunction—whether Congress granted to the Assistant Attorney General the unbounded authority to impose his or her own conditions on the release of the Byrne JAG funds. The Byrne JAG statute itself grants the Attorney General explicit authority to carry out specific actions under the Act in 34 U.S.C. §§ 10152–10158, including: to make grants “in accordance with the formula established under section 10156,” § 10152(a)(1); to develop a program assessment component in coordination with the National Institute of Justice, and to waive that requirement if the pro‐ gram is not of sufficient size to justify it, § 10152(c); to certify that extraordinary and exigent circumstances exist that would allow the use of the funds for purposes that fall with‐ in the prohibited use categories, § 10152(d)(2); to grant re‐ newals and extensions beyond the four year period, § 10152(f); to determine the form of the application and the

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certification, § 10153(a); to provide technical assistance to states and local governments, § 10153(b); to approve or dis‐ approve applications after affording the applicant reasona‐ ble notice of deficiencies and the opportunity for correction and reconsideration, § 10154; to issue rules to carry out this part, § 10155; to allocate funds pursuant to the statutory formula, § 10156; to certify that a unit of local government bears disparate costs as defined in the statute to allow for disparate allocations under that formula, § 10156(d)(4); to reallocate funds not used by the state, § 10156(f); to reserve not more than $20,000,000 for use by the National Institute of Justice and for antiterrorism programs, § 10157(a); to reserve not more than 5 percent, to be granted to 1 or more states or local governmental units, to address precipitous or extraor‐ dinary increases in crime or in types of crimes, or to mitigate significant programmatic harm resulting from the operation of the formula for allocating funds, § 10157(b); and to reduce the amounts paid if a state or local unit of government fails to expend the funds within the grant period and fails to re‐ pay it, § 10158. None of those provisions grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration en‐ forcement, nor to deny funds to states or local governments for the failure to comply with those conditions. The Attorney General does not argue otherwise; he does not argue that any provision in the Byrne JAG statute authorizes the impo‐ sition of the conditions.
Instead, in his appeal, the Attorney General places all his purported authorization in one statutory basket, pointing to 34 U.S.C. § 10102(a)(6) as authorizing the Assistant Attorney General to impose these—and indeed any—conditions on grant recipients. Section 10102 sets forth the duties and func‐

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tions of the Assistant Attorney General for the Office of Jus‐ tice Programs and provides:
§ 10102. Duties and functions of Assistant Attorney Gen‐ eral
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the condi‐ tions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
(3) provide information to the President, the Congress, the judiciary, State and local governments, and the gen‐ eral public relating to criminal justice;
(4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assis‐ tance, the National Institute of Justice, the Bureau of Jus‐ tice Statistics, the Office for Victims of Crime, and the Of‐ fice of Juvenile Justice and Delinquency Prevention; and
(6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, includ‐ ing placing special conditions on all grants, and deter‐ mining priority purposes for formula grants.

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34 U.S.C.A. § 10102 [emphasis added]. The Attorney General contends that the bolded language constitutes a grant of au‐ thority to the Assistant Attorney General to impose any conditions he or she sees fit, and applies to the Byrne JAG grants as well even though the grants are in a different sub‐ chapter.
It is well‐established that the plain language of a statute is “the best indicator of Congress’s intent,” and that “’[a]bsent a clearly expressed legislative intention to the con‐ trary, that language must ordinarily be regarded as conclu‐ sive.’” Fed. Nat’l Mortg. Ass’n. v. City of Chicago, 874 F.3d 959, 962 (7th Cir. 2017), quoting Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1152 (7th Cir. 2016); Puerto Rico v. Franklin California Tax‐Free Trust, 136 S. Ct. 1938, 1946 (2016). The Attorney General’s interpretation is contrary to the plain meaning of the statutory language. The word “including” by definition is used to designate that a person or thing is part of a partic‐ ular group. See e.g. Oxford English Dictionary, Third Ed., Sept. 2016, www.oed.com (defining “including” as “[u]sed to indicate that the specified person or thing is part of the whole group or category being considered: with the inclu‐ sion of”) (last visited 03‐12‐18.) In this section, its plain meaning is to set forth a subcategory of the types of powers and functions that the Assistant Attorney General may exer‐ cise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General.
The inescapable problem here is that the Attorney Gen‐ eral does not even claim that the power exercised here is au‐ thorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate

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it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open‐ended au‐ thority to impose additional conditions. See 34 U.S.C. §§ 10152–10157. Therefore, the Attorney General’s argument is that the “including” clause itself is a stand‐alone grant of authority to the Assistant Attorney General to attach any conditions to any grants in that subchapter or other sub‐ chapters even though that authority is not otherwise provid‐ ed in the chapter and is not possessed by the Attorney Gen‐ eral. Because that interpretation is so obviously belied by the plain meaning of the word ”including,” the Attorney Gen‐ eral’s position is untenable.2
That alone is sufficient to end the inquiry and affirm the determination of a likelihood of success on the merits. But we note that our plain reading of the statute is also con‐ sistent with the structure of § 10102 and of the Byrne JAG statute.
First, § 10102(a)(6) would be an unlikely place for Con‐ gress to place a power as broad as the one the Attorney Gen‐ eral asserts. The preceding “powers” in the list, §§ 10102(a)(1)–(5), address the communication and coordina‐ tion duties of the Assistant Attorney General. The sixth pro‐ vision, § 10102(a)(6), is a catch‐all provision, simply recog‐

2 The Attorney General’s argument might fail for an additional rea‐ son, that the term “special conditions” is a term of art referring to condi‐ tions for high‐risk grantees with difficulty adhering to grant require‐ ments, and cannot be read as an unbounded authority to impose “any” conditions generally. See City of Philadelphia, 280 F. Supp. 3d at 617. In light of our analysis of the clause as a whole, we need not address that argument.

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nizing that the Assistant Attorney General can also exercise such other powers and functions as may be vested through other sources—either in that Chapter or by delegation from the Attorney General. The “including” phrase is tacked on to that. A clause in a catch‐all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General. The structure of § 10102 therefore is con‐ sistent with the plain language interpretation—that the “in‐ cluding” clause merely exemplified the type of other powers that the Assistant Attorney General may possess by delega‐ tion elsewhere.
Moreover, an interpretation such as is argued by the At‐ torney General, that would allow the Assistant Attorney General to impose any conditions on the grants at will, is in‐ consistent with the goal of the statute to support the needs of law enforcement while providing flexibility to state and local governments. And the notion of the broad grant of authority to impose any conditions on grant recipients is at odds with the nature of the Byrne JAG grant, which is a formula grant rather than a discretionary grant. As a formula grant, it is structured so that the funds are allocated based on a careful‐ ly defined calculation which determines a minimum base allocation which can be enhanced based on the state’s share of the national population and the state’s share of the coun‐ try’s violent crime statistics. Once calculated, 60 percent of the state’s allocation is awarded to the state and 40 percent to the eligible local government units. See 34 U.S.C. § 10156; Edward Byrne Memorial Justice Assistance Grant (JAG)

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Program Fact Sheet, https://www.bja.gov/programs/JAG‐ Fact‐Sheet.pdf (last visited 03‐07‐18). The Attorney General is authorized under the statute to make grants “in accord‐ ance with the formula established under section 10156.” 34 U.S.C. § 10152(a). If Congress sought to provide an agency the ability to exercise its judgment in the selection of the grantees, it would have made sense for it to do so by em‐ ploying the discretionary grant model rather than the formu‐ la grant structure used here. Located in a different subpart of the same statute, the provision for discretionary grants im‐ bues the Director (who reports to the Assistant Attorney General) with the authority to award funds on terms and conditions that the Director determines to be consistent with that subpart. See 34 U.S.C. § 10142.
The ability of the Attorney General to depart from the distribution mandated by the formula is strictly circum‐ scribed. For instance, of the total amount available in a given fiscal year, the Attorney General is authorized to reserve “not more than 5 percent, to be granted to 1 or more States or units of local government” for one or more of the allowed statutory purposes, “pursuant to his determination that the same is necessary (1) to combat, address, or otherwise re‐ spond to precipitous or extraordinary increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula … .” 34 U.S.C. § 10157(b). Moreo‐ ver, the Attorney General is authorized by other statutes to reduce the funding in certain circumstances, but even then the amount of the reduction is set by statute. For example, the Sex Offender Registration and Notification Act mandates a 10 percent reduction in JAG funding if a state fails to sub‐ stantially implement its provisions. 34 U.S.C. § 20927(a).

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And the Prison Rape Elimination Act of 2003 stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of JAG funds unless it certi‐ fies that no less than 5 percent of such funds will be used solely to achieve compliance. 34 U.S.C. § 30307(e)(2)(A).
Therefore, the statute precisely describes the formula through which funds should be distributed to states and lo‐ cal governments, and imposes precise limits on the extent to which the Attorney General can deviate from that distribu‐ tion. Against that backdrop, it is inconceivable that Congress would have anticipated that the Assistant Attorney General could abrogate the entire distribution scheme and deny all funds to states and localities that would qualify under the Byrne JAG statutory provisions, based on the Assistant At‐ torney General’s decision to impose his or her own condi‐ tions—the putative authority for which is provided in a dif‐ ferent statute. Indeed, the statute which purportedly grants that power to the Assistant Attorney General was passed in the same Omnibus Act as the Byrne JAG statute, yet nothing in the Byrne JAG statute cross‐references that alleged au‐ thority or even hints that the tightly‐circumscribed structure of the Byrne JAG grants can be upended by some unbound‐ ed authority in § 10102 of the Assistant Attorney General to impose new conditions.
Finally, Congress knew how to grant such authority, and explicitly did so in another statute within the same Act that added the “including” language. See generally Violence Against Women and Department of Justice Reauthorization Act of 2005, H.R. 3402, Pub. L. No. 109‐162, 119 Stat. 2960 (2006). The Violence Against Women Act provided that “[i]n disbursing grants under this subchapter, the Attorney Gen‐

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eral may impose reasonable conditions on grant awards to ensure that the States meet statutory, regulatory, and other program requirements.” 34 U.S.C. § 10446(e)(3). In contrast, as set forth above, the Byrne JAG statute provides the Attor‐ ney General authority over a carefully delineated list of ac‐ tions, with no such broad authority to impose reasonable conditions. If Congress had wanted to vest such authority in the Attorney General regarding the Byrne JAG grant, one would expect it to include explicit language in the grant statute itself, as it did in the Violence Against Women Act. The Attorney General’s argument that such sweeping au‐ thority over the major source of funding for law enforcement agencies nationwide was provided to the Assistant Attorney General by merely adding a clause to a sentence in a list of otherwise‐ministerial powers defies reason. The authority to impose any conditions desired to the Byrne JAG grant—and by the Attorney General’s reasoning to all other grants un‐ der the Assistant Attorney General’s domain—is a tremen‐ dous power of widespread impact, and is not the type of au‐ thority that would be hidden in a clause without any expla‐ nation, and without any reference or acknowledgment of that authority in the statute that actually contains the grant itself. See e.g. Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (re‐ jecting the Attorney General’s argument that the power to deregister a physician in the public interest included the power to criminalize the actions of registered physicians when they engage in conduct he deems illegitimate, and holding that “[i]t would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a sin‐ gle drug, but to have given him, just by implication, authori‐ ty to declare an entire class of activity outside ‘the course of

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professional practice,’ and therefore a criminal violation”); Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2444 (2014) (noting that the Court would expect Congress to speak clearly if it wished “to assign to an agency decisions of vast ‘economic and political significance.’”), quoting Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguous‐ ly.”) As the Supreme Court has repeatedly held, “’Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.’” Gonzales, 546 U.S. at 267, quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).
Accordingly, the district court did not err in determining that the City established a likelihood of success on the merits of its contention that the Attorney General lacked the au‐ thority to impose the notice and access conditions on receipt of the Byrne JAG grants. The Attorney General raises no challenge to the district court’s application of other prelimi‐ nary injunction factors, and therefore, the district court properly determined that preliminary relief was warranted.
IV.
The Attorney General additionally challenges the scope of the preliminary injunction, arguing that the district court erred in granting nationwide relief, rather than more nar‐ rowly limiting the geographic scope of the injunction to the City of Chicago. We are cognizant of the possible hazards of the use of nationwide injunctions, as was the district court in this case. Commentators have cautioned that the use of na‐

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tionwide injunctions can stymie the development of the legal issues through the court system as a whole. See e.g. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunc‐ tion, 131 Harvard L. Rev. 417 (2017); Zayn Siddique, Nation‐ wide Injunctions, 117 Colum. L. Rev. 2095 (2017); but see Spen‐ cer E. Amdur and David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harvard L. Rev. F. 49 (2017) When relief is limited in geographic scope, multiple cases may be filed in numerous jurisdictions, and the reviewing courts may therefore gain a wider range of perspectives and the opportunity to explore the impact of those legal issues in other factual contexts. That process may be truncated, how‐ ever, if a district court issues a nationwide injunction.
Moreover, where nationwide injunctions are possible, courts must be cognizant of the potential for forum shop‐ ping by plaintiffs. Commentators have documented this phenomenon over the past decades, which transcends ad‐ ministrations and political parties. For instance, under the Obama administration, such injunctions stymied many of the President’s policies, with five nationwide injunctions is‐ sued by Texas district courts in just over a year. See Bray, Multiple Chancellors, 131 Harvard L. Rev. at 458–59 and cases cited therein. At that time, then‐Senator and now‐Attorney General Sessions characterized the upholding of one such nationwide preliminary injunction as “a victory for the American people and for the rule of law.” Press Release, Sen. Jeff Sessions III, June 23, 2016. Now, many who advocated for broad injunctions in those Obama‐era cases are opposing them.
In fact, support for or opposition to nationwide injunc‐ tions would likely vary with the nature of the controversial

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issue at stake and the identity of the persons in power. For example, if a different Administration concluded that certain weapons were a threat to public safety, and conditioned re‐ ceipt of Byrne JAG funds on a state or locality adopting a policy banning assault weapons, it is quite likely that the sides would reverse once again as to the need for and ap‐ propriateness of nationwide injunctions. Although the pur‐ suit of nationwide injunctions may be influenced by shifting political motivations, that neither means that nationwide in‐ junctions themselves are inherently evil, nor that such in‐ junctions should never be issued. Instead, courts in deter‐ mining the proper scope of injunctive relief, must be cogni‐ zant of the potential for such injunctions to have a profound impact on national policy.
In light of those concerns with limiting the input of other courts and with forum shopping, nationwide injunctions should be utilized only in rare circumstances. That said, na‐ tionwide injunctions nevertheless play an important and proper role in some circumstances. Certainly, for issues of widespread national impact, a nationwide injunction can be beneficial in terms of efficiency and certainty in the law, and more importantly, in the avoidance of irreparable harm and in furtherance of the public interest.
In fact, the Supreme Court in Trump v. Intern. Refugee As‐ sistance Project, 137 S. Ct. 2080 (2017), recently denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign na‐ tionals from seven countries. The Court recognized that “[c]rafting a preliminary injunction is an exercise of discre‐ tion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it pre‐

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sents.” Id. at 2087. The Court refused to stay the nationwide injunction as to enforcement against foreign nationals who have a credible claim of a bona fide relationship with per‐ sons or entities in the United States. Id. at 2088. The district court in fashioning that preliminary injunction, and in weighing the equities, had focused on the concrete burdens that would fall on the particular named individuals in the case who sought injunctive relief, and reasoned that the hardships were sufficiently weighty and immediate to out‐ weigh the Government’s interest. Id. at 2087. The court then approved injunctions that covered not merely those individ‐ uals, but parties similarly situated to them nationwide, and the Supreme Court determined that the injunction should remain in place even as to those similarly‐situated persons. Id. 2088.
The dissent in Trump raised the same objections that the Attorney General asserts in this case, but those arguments did not carry the day in Trump and should not do so here either. The Trump dissenters argued that it could have been reasonable for the Court to have left the injunctions in place as to the individuals who sought relief in the case, but that it was improper to allow the injunction to remain as to an “un‐ identified, unnamed group of foreign nationals abroad.” Id. at 2090. The dissenters complained that no class had been certified, and the parties had not asked for the scope of relief provided. Id. Concluding that injunctive relief should be “’no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs ‘ in the case,” the dis‐ senters disagreed with the determination to allow the injunc‐ tion to remain in place beyond those individual plaintiffs. Id., quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The Attorney General in this case also argues that injunctive re‐

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lief should not extend beyond that necessary to provide complete relief to the particular plaintiff—here, the City— but as Trump demonstrates, that limitation will not neces‐ sarily be proper where the balance of equities and the nature of the claims require broader relief. See also Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (upholding a na‐ tionwide injunction even though factfinding focused on Milwaukee County, because the case had evolved to chal‐ lenging the facial constitutionality with the evidence regard‐ ing Milwaukee County merely discussed as illustration).
The district court in this case was aware of all of the con‐ cerns identified above, and in fact on its own identified and considered the articles by the commentators detailing the history of the nationwide injunction and the concerns with the use of it as a remedy. The court nevertheless held that the “equitable balance” necessitated such a remedy in this case. On appeal, we review the district court’s determination as to the scope of the injunction only for an abuse of discre‐ tion. Harlan, 866 F.3d at 758.
The Attorney General raises three challenges to the na‐ tionwide injunction. First, the Attorney General argues that the City must seek standing as to each form of relief sought, and that it lacks standing to seek relief that benefits third parties. That argument is a non‐starter. The City had stand‐ ing to seek injunctive relief, and the district court had the au‐ thority to fashion the terms of that injunction as it deter‐ mined necessary for the public interest in light of its deter‐ mination that the City was likely to succeed on its claim that the actions violated the constitutional principles of separa‐ tion of powers. United States v. Oakland Cannabis Buyersʹ Co‐ op., 532 U.S. 483, 496 (2001); Zamecnik v. Indian Prairie Sch.

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Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (“’When the court believes the underlying right to be highly significant, it may write injunctive relief as broad as the right itself.’”) quoting 1 Dan B. Dobbs, Law of Remedies § 2.4(6), p. 113 (2d ed.1993). Courts, including the Supreme Court recently in Trump as discussed above, have not found a lack of jurisdic‐ tion solely because a nationwide injunction was imposed in the absence of a class action.
The Attorney General maintains that even apart from Ar‐ ticle III concerns, equitable principles require that the injunc‐ tion be no more burdensome than necessary to provide complete relief to the City, and that the nationwide injunc‐ tion exceeds that limit. Along a similar vein, the Attorney General also argues that the district court erred in conflating the scope of Chicago’s legal argument with the scope of re‐ lief necessary to remedy the alleged injury, and that the City as an individual plaintiff should not obtain the equivalent of class‐wide relief.
Those arguments would seek a bright‐line rule that is both inconsistent with precedent and inadvisable. Essential‐ ly, the Attorney General’s approach would limit nationwide injunctions to class actions, but that is inconsistent with Trump and the myriad cases preceding it in which courts have imposed nationwide injunctions in individual actions.
Nor should the district court be so handcuffed in deter‐ mining the scope of relief that is proper. Certainly, the abil‐ ity to impose a nationwide injunction is a powerful remedy that should be employed with discretion. Regardless, there are checks in the system to lessen the potential for any mis‐ use of nationwide injunctions by the court. First, the appel‐ late process itself operates to minimize the potential for er‐

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roneous or overbroad injunctions. In fairly short order, the appellate process can ensure that multiple judges review the determination, thus acting as a check on the possibility of a judge overly‐willing to issue nationwide injunctions. And of course, nationwide injunctions, because of the widespread impact, are also more likely to get the attention of the Su‐ preme Court.
Moreover, that focus on the potential shortcomings of na‐ tionwide injunctions, though proper, fails to recognize the need for such relief where the balance of equities weighs strongly in favor of such relief. Courts must be able to de‐ termine whether an action implicates the Constitution, and once a court determines that preliminary relief is required, the court must be able to engage in the “equitable balancing” to determine the relief necessary. Rarely, that will include nationwide injunctions. Granted, it is an imprecise process, but that is endemic to injunctions, and courts are capable of weighing the appropriate factors while remaining cognizant of the hazards of forum shopping and duplicative lawsuits.
The case before us presents an example of the type of case in which a district court should properly be able to ap‐ ply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.
First, the challenge here presents purely a narrow issue of law; it is not fact‐dependent and will not vary from one locality to another. The plaintiffs have demonstrated a likeli‐ hood of success on the claim that the Attorney General lacked any Constitutional authority to impose the conditions

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upon the grant recipients, and therefore that the actions vio‐ lated the separation of powers principles. We are faced, then, with conditions on the receipt of critical law enforcement funds that have been imposed by the Attorney General without any authority in a manner that usurps the authority of Congress—made more egregious because Congress itself has repeatedly refused to pass bills with such restrictions. A narrow question of law such as is present here is more likely to lend itself to broader injunctive relief, and that is particu‐ larly true where the plaintiff has established a likelihood of success on a claim that the Attorney General acted ultra vires in imposing the conditions and those conditions apply uni‐ formly on all grant recipients. Accordingly, this does not present the situation in which the courts will benefit from allowing the issue to percolate through additional courts and wind its way through the system in multiple independ‐ ent court actions. There are some legal issues which benefit from consideration in multiple courts—such as issues as to the reasonableness of searches or the excessiveness of force—for which the context of different factual scenarios will better inform the legal principle. But a determination as to the plain meaning of a sentence in a statute is not such an issue. For that issue, the duplication of litigation will have little, if any, beneficial effect.
Moreover, the balance of equities supports the district court’s determination to impose the injunction nationwide. As the Trump Court noted, in determining the proper scope of an injunction, the court must weigh the balance of equi‐ ties, which explores the relative harms to the plaintiff and defendant as well as the interests of the public at large. Trump, 137 S. Ct. at 2087. The district court properly assessed that balance of harms here. The harm to the Attorney Gen‐

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eral is minimized because the Attorney General can distrib‐ ute the funds without mandating the conditions—as has been done for over a decade—and nothing in the injunction prevents any state or local government from coordinating its local law enforcement with the federal authorities and com‐ plying with the conditions sought here. And we have seen that even objecting governments such as the City willingly cooperate with federal authorities as to those individuals who commit serious offenses. The adverse impact to the At‐ torney General is limited to those jurisdictions who oppose the conditions, which presumably would be the jurisdictions that would join in pursuing the multiplicitous cases that would be needed to obtain the relief provided here, or which would not have the means to pursue such litigation and would face the choice of complying with the apparently‐ unconstitutional conditions or losing crucial law enforce‐ ment funds. On the other hand, the impact on localities forced to comply with these provisions could be devastating. Those local and state governments have concluded that the safety of their communities is furthered by a relationship of trust with the undocumented persons and lawful immi‐ grants residing therein—and those localities are clearly in the best position to determine the security needs of their own communities. Such trust, once destroyed by the man‐ dated cooperation and communication with the federal im‐ migration authorities, would not easily be restored. And given the significance of the federal funds at issue, amount‐ ing to hundreds of thousands to millions of dollars for each state, noncompliance is a particularly poor option.
Moreover, the public interest, which is also a factor in the balance of equities, see Trump, 137 S. Ct. at 2087, weighs in favor of the nationwide injunction. The public interest

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would be ill‐served here by requiring simultaneous litigation of this narrow question of law in countless jurisdictions. And it is clear from the nature of the claim and the response of amici in this case that litigation on this matter would indeed be widespread and simultaneous. First, the actions would have to be brought swiftly in each jurisdiction, because the conditions are imposed by the Attorney General in the award of the grant itself, and therefore the window for chal‐ lenging the conditions is limited to the 45‐day period be‐ tween the award of the grant and the deadline for accepting or rejecting that award. This is not a situation in which courts would be able to benefit from perusing the decisions of other courts in the matter.
And it is clear that a significant number of award recipi‐ ents oppose the conditions and would challenge the condi‐ tions if financially able to do so. Among the amici asking the district court to uphold the injunction in the stay proceed‐ ings were 37 cities and counties. In fact, while the motion to stay was pending in the district court, the United States Con‐ ference of Mayors, representing the interests of 1,400 cities nationwide, including many Byrne JAG grant applicants, moved to intervene, but that motion was denied in part be‐ cause the nationwide injunction was sufficient to protect the interests of its members. Moreover, 14 states and the District of Columbia filed an amicus brief in this court also arguing for affirmance of the nationwide injunction, thus further ex‐ hibiting the likelihood of widespread, duplicative litigation in the absence of such relief. The district court appropriately held that judicial economy counseled against requiring all of those jurisdictions, and potentially others, from filing indi‐ vidual lawsuits to decide anew the narrow legal question in this case.

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Finally, the structure of the Byrne JAG program itself supports the district court’s determination to impose a na‐ tionwide injunction because the recipients of the grant are interconnected. Funding under the statute is allocated among states and localities from one pool based on a strict formula. The states and cities seeking grants under the Byrne JAG program are not islands, in which actions as to one are without impact on others. The conditions imposed on one can impact the amounts received by others. For instance, the amounts allocated under the Byrne JAG program can vary based on the participation of the states and localities, and the distribution structure includes explicit provisions for reallo‐ cation of funds in some circumstances—such as to units of local government if the State is unable to qualify to receive funds or chooses not to participate. 34 U.S.C. § 10156(f). Fur‐ thermore, funds allocated to Byrne JAG recipients can be withheld as a penalty for non‐compliance with other statuto‐ ry requirements, and those funds are then reallocated to oth‐ er, compliant, Byrne JAG recipients. See e.g. 34 U.S.C. § 20927, § 30307(e). The City further points out that under its provisions, the City is obligated to apply for Byrne JAG funds not only for itself but for eleven neighboring localities. Thus, the recipients of Byrne JAG funding are interconnect‐ ed and an impact to one recipient can have a ripple effect on others. Under such a formula grant in which the states and local governments are intertwined, and where the conditions imposed preclude all funding to those who refuse to comply, piecemeal relief is ineffective to redress the injury, and only nationwide relief can provide proper and complete relief. In sum, this is an instance in which the court could, and did in the exercise of its discretion, appropriately enter a nation‐ wide injunction.

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Our review here is a narrow one. We can reverse only if the Attorney General has established that the district court abused its discretion in determining that the scope of the in‐ junction should be nationwide. Judge Leinenweber in this case set forth his thoughtful consideration of the appropriate factors in the decision below denying the stay, and given the purely legal nature of the issue here, the broad and uniform impact on all grant recipients, the minimal harm to the At‐ torney General given the continued ability for voluntary co‐ operation, and the structure of the Byrne JAG statute that interconnects those grant recipients, we conclude that the court did not abuse its discretion here.
V.
Accordingly, the district court did not err in determining that the City established a likelihood of success on the merits of its contention that the Attorney General lacked the au‐ thority to impose the notice and access conditions on receipt of the Byrne JAG grants, and did not abuse its discretion in granting the nationwide preliminary injunction in this case. The decision of the district court is AFFIRMED.

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MANION, Circuit Judge, concurring in the judgment in part and dissenting in part. Unless done for a purpose “un‐ related to the enforcement of a civil immigration law,” the City of Chicago forbids its agencies or agents to
(A) permit ICE [Immigration and Customs En‐ forcement] agents access to a person being de‐ tained by, or in the custody of, the agency or agent; (B) permit ICE agents use of agency fa‐ cilities for investigative interviews or other in‐ vestigative purpose; or (C) while on duty, ex‐ pend their time responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date.
Chicago, Ill., Muni. Code § 2‐173‐042(b)(1). This ordinance’s proscription on cooperation does not apply if the subject of the investigation falls within at least one of four excepted classes of persons: those with outstanding criminal warrants, felons, those with a felony charge pending, and known gang members. Id. at § 2‐173‐042(c). For Chicago, this ordinance barring collaboration with federal immigration authorities is important to maintaining its image as a “Welcoming City,” open to aliens both documented and undocumented. It con‐ siders it an expression of its independent sovereignty that it can choose not to assist the federal government in enforcing the nation’s immigration laws. For the Attorney General, the ordinance is an obstacle to effective law enforcement. His interest is in getting deportable criminal aliens off the streets, and he believes Chicago’s policies endanger the community.
This debate casts a long shadow over this appeal, but ul‐ timately these broad questions touching on immigration pol‐ icy and federal/local cooperation in law enforcement are not

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at issue in this case. Instead, this is a case about federal funds and who gets to decide the terms by which those funds are distributed.
Since 2006, the federal government has given money to local governments for law enforcement purposes through the Byrne JAG program. For Fiscal Year 2017, the Attorney General wants to impose immigration‐related conditions on the receipt of those funds. Specifically, the Attorney General wants Byrne JAG recipients to provide federal immigration agents with notice of the release dates of certain aliens in their custody (the “Notice” condition); provide immigration agents with access to facilities to conduct interviews with certain detainees (the “Access” condition); and provide a cer‐ tification of compliance with 8 U.S.C. § 1373, which bars governments from prohibiting their officials “from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigra‐ tion status, lawful or unlawful, of any individual” (the “Compliance” condition).
Because of its commitment to being a “Welcoming City,”1 Chicago does not want to comply with these conditions. But it still wants to receive its Byrne JAG allotment, so it filed this lawsuit against the Attorney General seeking to prevent

1 As the court notes, Chicago uses the term “Welcoming City,” but its policies place it in the same camp as other so‐called “sanctuary cities.” Maj. Op. at 10–11. The court calls this a misnomer: those cities do not “interfere in any way with the federal government’s lawful pursuit of its civil immigration activities.” Id. at 11. Whether and to what extent such “sanctuary” policies constitute passive non‐cooperation or active inter‐ ference is the subject of other litigation. See United States v. California, No. 18‐264 (E.D. Cal. filed Mar. 6, 2018).

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him from enforcing these conditions. The case is before us on appeal from a grant of a preliminary injunction forbidding the Attorney General from enforcing the Notice and Access conditions. The Compliance condition is not at issue in this appeal.
To get a preliminary injunction, a plaintiff like Chicago must show “that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of pre‐ liminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). The dis‐ trict court decided a preliminary injunction was appropriate. It concluded that Chicago was likely to succeed on the merits because the Attorney General lacks the authority to impose the Notice and Access conditions and that Chicago would suffer irreparable harm without an injunction. The court de‐ termined that the balance of the equities and the public in‐ terest “favor neither party.” City of Chicago v. Sessions, 264 F. Supp. 3d 933, 951 (N.D. Ill. 2017).
On appeal, the Attorney General only challenges one as‐ pect of the district court’s reasoning for entering an injunc‐ tion: he argues he does have the authority to impose the No‐ tice and Access conditions.2 The court today says he does

2 Surprisingly, the Attorney General does not challenge any other detail of the district court’s reasoning, even though the district court appears to have misapplied Winter. The district court treated the four requirements of the Winter test as factors to be weighed rather than elements to be met. Thus, even though the district court specifically concluded the balance of the equities and the public interest did not favor Chicago, it still entered an injunction. Because Chicago did not meet all four elements as laid out in Winter, it seems the district court should not have entered an injunc‐ tion. See Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d

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not, and I agree. As that is all the Attorney General challeng‐ es about the district court’s reasoning, I concur in the court’s judgment that the decision to enter an injunction protecting Chicago was not an abuse of discretion.
However, the court today also concludes that it was with‐ in the district court’s discretion to impose that injunction na‐ tionwide. Because I believe the entry of the nationwide in‐ junction constituted an overstep of the district court’s au‐ thority, I dissent from that portion of the court’s decision.
I.
The Notice and Access conditions, viewed in isolation, are perfectly reasonable. No one should find it surprising that the federal government would require cooperation with its law enforcement efforts in exchange for the receipt of fed‐ eral law enforcement funds. Indeed, the Attorney General’s obvious frustration at applicants for Byrne JAG funds who “insist on their entitlement to federal law enforcement grants even as they refuse to provide the most basic cooperation in immigration enforcement” is eminently understandable. Appellant’s Brief at 17. But the reasonableness and sound‐ ness of the conditions are not at issue here. Courts do not (or at least should not) decide legal issues based on the courts’ impression of the propriety of particular policies. Conse‐

342, 347 (4th Cir. 2009) (“Winter articulates four requirements, each of which must be satisfied as articulated….”), judgment vacated on other grounds by 559 U.S. 1089 (2010). Nevertheless, because the Attorney Gen‐ eral has not challenged this aspect of the district court’s order, he has waived it as a grounds for reversal. See Hojnacki v. Klein‐Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (“A party waives any argument that it does not raise before the district court or, if raised in the district court, it fails to develop on appeal.”).

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quently, the debates over how much the states should be in‐ volved in enforcing immigration policy should not distract from the issues within the court’s purview to resolve.
Because this case deals with the awarding of a federal grant, it necessarily concerns the spending of federal money. The Constitution places the power to spend federal money in the legislative branch. See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power…to pay the Debts and provide for the…general Welfare of the United States….”); see also Nat’l Federation of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012) (“We have long recognized that Congress may use [the Spending Clause] power to grant federal funds to the states and determining priority purposes for formula grants.”). With this power comes the ancillary authority to place conditions on the receipt of federal funds. Nat’l Federa‐ tion of Indep. Bus., 567 U.S. at 576. Accordingly, there is no in‐ herent executive authority to place conditions on the receipt of federal funds—any such authority must be given to the executive by the legislature. See generally La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986) (“[A]n agency liter‐ ally has no power to act…unless and until Congress confers power upon it.”).
Recognizing this, the Attorney General directs us to 34 U.S.C. § 10102(a)(6), which states that the Assistant Attorney General for the Office of Justice Programs, which oversees the Byrne JAG program, shall “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the At‐ torney General, including placing special conditions on all grants….” 34 U.S.C. § 10102(a)(6) (emphasis added). The At‐ torney General argues this is a broad‐sweeping grant of au‐

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thority to impose any conditions on any grants, the only lim‐ it being the Constitution itself. I agree with the court that this is not so.
Therefore, because I agree that the Attorney General does not have the authority to impose the Notice and Access con‐ ditions, and because that is all the Attorney General chal‐ lenges concerning the propriety of an injunction, I concur in the judgment of the court affirming the entry of a prelimi‐ nary injunction prohibiting the Attorney General from im‐ posing those conditions on Chicago. 3
II.
But a simple preliminary injunction protecting Chicago (the only plaintiff in this suit) is not all the district court en‐ tered. Instead, the district court announced as follows: “This injunction against imposition of the notice and access condi‐ tions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chi‐ cago or that the statutory authority given to the Attorney

3 The Attorney General does not have authority to force Chicago to co‐ operate with federal immigration‐enforcement efforts as a condition to receiving Byrne JAG funds. But that does not mean that such coopera‐ tion is not allowed. Indeed, based on the exceptions in Chicago’s ordi‐ nance, Chicago itself has concluded that cooperation with the federal government concerning certain classes of alien is to its benefit. I assume and expect that, for example, when Chicago finds itself with custody over a deportable alien who was convicted of a felony, members of vari‐ ous law enforcement agencies in Chicago are free to work with ICE and provide notice of release and access to that alien. The Attorney General cannot force that cooperation as a condition of receiving funds, but it is likely there are a number of Chicago police officers and other officials who are ready, willing, and able to work with ICE agents in such situa‐ tions, and they are free to do so.

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General would differ in another jurisdiction.” City of Chicago, 264 F. Supp. 3d at 951.
This was a gratuitous application of an extreme remedy. This court now upholds the district court’s overreach be‐ cause “[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors na‐ tionwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.” Maj. Op. at 30. In doing so, the court bypasses Supreme Court precedent, disregards what the district court actually concluded concerning the equities in this case, and misreads the effect of providing relief to Chicago only.
A. United States v. Mendoza
First, the court says a nationwide injunction was appro‐ priate in this case because it “presents purely a narrow issue of law… [that] will not vary from one locality to another.” Maj. Op. at 30. This reasoning is contrary to Supreme Court precedent.
A nationwide injunction is similar in effect to nonmutual offensive collateral estoppel, which “occurs when the plain‐ tiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979). In United States v. Mendoza, 464 U.S. 154 (1984), the Supreme Court held that “nonmutual offen‐ sive collateral estoppel…does not apply against the Gov‐ ernment in such a way as to preclude relitigation of issues.” Id. at 162. The Court did so primarily because “allowing nonmutual collateral estoppel against the Govern‐ ment…would substantially thwart the development of im‐

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portant questions of law by freezing the first final decision rendered on a particular legal issue.” Id. at 160. Additionally, it noted that “[a]llowing only one final adjudication would deprive [the] Court of the benefit it receives from permitting several courts of appeals to explore a difficult question be‐ fore [the] Court grants certiorari.” Id. As the Fourth and Ninth Circuits have both recognized, these concerns are just as present in the context of nationwide injunctions. See L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011); Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by The Real Truth About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d 544 (4th Cir. 2012).
Though the court does not cite Mendoza in its opinion to‐ day, it implicitly attempts to distinguish that decision. It says that this case “does not present the situation in which courts will benefit from allowing the issue to percolate through ad‐ ditional courts and wind its way through the system in mul‐ tiple independent court actions.” Maj. Op. at 31. It claims this case is different from ones involving issues “for which the context of different factual scenarios will better inform the legal principle.” Id. But if a lack of factual differentiation is all that is needed to distinguish Mendoza, then a nation‐ wide injunction is appropriate in every statutory‐ interpretation case. That cannot be the law. If anything, the opposite is true. Different parties litigating the same issues in different forums will likely engage different arguments, leading to diverse analyses and enhancing the likelihood of the strongest arguments coming to the fore. Courts faced with difficult statutory questions are the ones who benefit the most from the existence of multiple well‐reasoned deci‐ sions from which to draw.

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Virginia Society for Human Life is illustrative. In that case, the Fourth Circuit was faced with deciding the constitution‐ ality of a federal regulation, “a ‘purely legal’ issue [for which] further factual development will not assist…in [the] resolution.” Va. Society for Human Life, Inc., 263 F.3d at 390 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Nevertheless, the Fourth Circuit concluded that a nation‐ wide injunction would have “the effect of precluding other circuits from ruling on the constitutionality of” the regula‐ tion, thus “conflict[ing] with the principle that a federal court of appeals’s decision is only binding within its circuit.” Id. at 393. The court recognized that to uphold the injunction would be to impose its “view of the law on all the other cir‐ cuits.” Id. at 394. That the underlying issue was purely legal did not alter that fact.
The district court’s order in this case, and this court’s de‐ cision to affirm it, directly conflict with these principles. We are not the Supreme Court, and we should not presume to decide legal issues for the whole country, even if they are purely facial challenges involving statutory interpretation. While we may be convinced that the statute says one thing, we should not discount the fact that our honorable col‐ leagues in other districts and other circuits may view things differently. Just as we can disagree with them, they can disa‐ gree with us. See, e.g., Atchison, Topeka and Santa Fe Ry. Co. v. Peña, 44 F.3d 437, 443 (7th Cir. 1994) (en banc) (“[W]hile we carefully consider the opinions of our sister circuits, we cer‐ tainly do not defer to them.”).

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B. Equities
The court’s opinion also says the balance of the equities weighs in favor of a nationwide injunction. Essentially, the court concludes it would have no serious impact on the At‐ torney General to distribute the money absent these condi‐ tions. But if the conditions are imposed, jurisdictions like Chicago who do not want to comply will be denied their federal funds or will be forced to sacrifice the trust of their (undocumented) immigrant communities.
On this point, there is no basis to second‐guess the rea‐ soning of the district court, which expressly determined that the balance of the equities and the public interest “favor nei‐ ther party.” City of Chicago, 264 F. Supp. 3d at 951. The dis‐ trict court acknowledged Chicago’s purported interest in “the benefits that flow from immigrant communities freely reporting crimes and acting as witnesses,” but it also recog‐ nized the Attorney General’s “need to enforce federal immi‐ gration law.” Id. The district court explained that “[b]oth sides can claim that concerns of public safety justify their po‐ sitions” and that “[b]oth parties have strong public policy arguments, the wisdom of which is not for the Court to de‐ cide.” Id. So equity weighs on both sides, and it certainly does not justify the entry of a nationwide injunction. Indeed, as alluded to in note 2, supra, a court in the Fourth Circuit would likely not even have entered a more limited injunc‐ tion when the equities were so evenly balanced. See Real Truth About Obama, Inc., 575 F.3d at 347. If an injunction is going to be nationwide, it should at least be one that could have been entered anywhere in the nation.
The court also suggests that avoiding “widespread, du‐ plicative litigation in the absence of” a nationwide injunction

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is in the public interest. Maj. Op. at 33. But a nationwide in‐ junction is not the only way, nor even the best way, to avoid this problem. Chicago could have filed a class action pursu‐ ant to Rule 23(b)(2) seeking declaratory and injunctive relief on behalf of all jurisdictions that do not want to comply with the conditions. See Fed. R. Civ. P. 23(b) (“A class action may be maintained if Rule 23(a) is satisfied and if:…(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole….”). Requiring a class action has the benefit of deal‐ ing with the one‐way‐ratchet nature of the nationwide in‐ junction. A nationwide injunction ties the Attorney General’s hands when he loses, but if Chicago had lost here, then some other municipality could have filed suit against the Attorney General in some other jurisdiction, and that process could in theory continue until a plaintiff finally prevailed. With a class action, a decision would bind those other municipali‐ ties just as it would bind the Attorney General, and they could not run off to the 93 other districts for more bites at the apple.
C. The Byrne JAG Statute
The court’s final reason for upholding the nationwide in‐ junction is that the nature of the Byrne JAG program re‐ quires it. Byrne JAG is a formula grant, meaning “allocations of money to states or their subdivisions are in accordance with a scheme prescribed by law or by administrative regu‐ lation.” Federal Grant Practice § 16:5 (2017 ed.). The Byrne JAG formula provides that of the money appropriated by Congress, 50% goes to the states based on population and 50% goes to the states based on violent crime statistics. 34

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U.S.C. § 10156(a)(1). Of the amount allotted to each state, 40% goes to local governments. Id. at (b)(2). If a jurisdiction fails to comply with certain statutory requirements, the funds can be withheld and redistributed. See 34 U.S.C. §§ 20927, 30307. The court notes that these and other considera‐ tions suggest that “an impact to one recipient can have a ripple effect on others.” Maj. Op. at 34.
This argument is not sufficient to justify a nationwide in‐ junction. It is axiomatic that the extraordinary relief of an in‐ junction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). This means that broad relief, even relief that benefits non‐parties, is some‐ times necessary to provide complete relief to the actual plaintiffs. The classic examples of such scenarios are deseg‐ regation cases. See, e.g., Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963). In those cases, the plaintiffs did “not seek the right to use those parts of segregated facilities that have been set aside for use by ‘whites only.’” Id. Rather, “they [sought] the right to use facilities which have been desegregated….” Id. Accordingly, “[t]he very nature of the rights [the plain‐ tiffs] [sought] to vindicate require[d] that the decree run to the benefit not only of [the plaintiffs] but also for all persons similarly situated.” Id. In the same vein, cases suggesting ubiquitous harm, such as federal violations of the Establish‐ ment Clause, could also justify a nationwide injunction, be‐ cause an establishment of religion by the federal government would harm the plaintiffs wherever it was taking place. See generally Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980). In those cases, the relief to non‐parties could be called a side‐ effect of the relief given to the plaintiffs.

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This was the case in International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017). There, the Fourth Cir‐ cuit upheld a nationwide injunction on the President’s “trav‐ el ban” because the plaintiffs were “dispersed throughout the United States,” there was an interest in ensuring uniform application of immigration laws, and the court concluded the ban “likely violates the Establishment Clause.” Id. at 605; see also Hawaii v. Trump, 859 F.3d 741, 787–88 (9th Cir. 2017). Without directly addressing the merits of why the injunction should be nationwide, the Supreme Court declined to com‐ pletely stay the injunction. See Trump v. Int’l Refugee Assis‐ tance Project, 137 S. Ct. 2080, 2089 (2017).
The same need to protect third parties to provide com‐ plete relief is not present here. The structure of the Byrne JAG program does not require granting relief to non‐parties. While the statute does provide situations in which money would be withheld and redistributed, there are no provi‐ sions for redistribution of funds withheld for failing to abide by the Attorney General’s “special conditions.”4 The formula provides for the calculation of allotments, and then those al‐ lotments are claimed by grantees submitting applications. Apart from instructing that money withheld from a state should be redistributed to its local governments, 34 U.S.C. § 10156(f), the statute is completely silent on what happens if a potential grantee is denied or if it simply fails to submit an application. Chicago has not shown how that situation would resolve itself, and it has certainly not shown how an

4 This may be further indication the Attorney General does not have the broad conditioning authority he claims he does, and underscores the need for Congress to intervene to fill in any blanks the Attorney General, or any other litigant, deems necessary.

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injunction preventing the Attorney General from enforcing the conditions at all is necessary to protect its own interest in collecting its allotment. If money were withheld and redis‐ tributed from other jurisdictions, Chicago would benefit by getting more money. Finally, this case is tangentially related to immigration law and policy, but it is ultimately a funding case, and it does not come close to implicating the nation‐ wide uniformity concerns raised in other cases. The nation‐ wide injunction is simply unnecessary here.
III.
Given the conclusion that Chicago has a likelihood to prevail on the merits in this case, and the fact that the Attor‐ ney General has not challenged any other aspect of the dis‐ trict court’s preliminary‐injunction analysis, I join the court’s judgment affirming the entry of the injunction. I do so, how‐ ever, only for an injunction that protects Chicago. Other ju‐ risdictions that do not want to comply with the Notice and Access conditions were not parties to this suit, and there is no need to protect them in order to protect Chicago. An in‐ junction, particularly a preliminary injunction, is an extreme remedy. A nationwide preliminary injunction is more ex‐ treme still. One should only be issued where it is absolutely necessary, and it is far from absolutely necessary here. Con‐ sequently, I would remand with instructions to the district court to modify the injunction so as to prevent the Attorney General from enforcing the conditions only concerning Chi‐ cago’s application for funds.

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CITY OF CHICAGO, Plaintiff-Appellee, v.
JEFFERSON B. SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES, Defendant-Appellant.

No. 17-2991

DEFENDANT-APPELLANT’S MOTION FOR PARTIAL STAY OF PRELIMINARY INJUNCTION PENDING A PETITION FOR
REHEARING EN BANC AND, IF NECESSARY, A PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION AND SUMMARY Defendant-appellant, the Attorney General, respectfully asks this Court to stay the nationwide preliminary injunction that was issued against certain federal grant conditions on September 15, 2017, insofar as the injunction applies to entities other than the City of Chicago—the only plaintiff in this case. A panel of this Court affirmed the injunction on April 19, 2018, with Judge Manion dissenting as to the injunction’s nationwide application to non-parties. As a practical matter, the nationwide injunction is improperly and gratuitously interfering with grants to all other jurisdictions in the country, and it also preempts litigation over the challenged grant conditions that is pending in other courts across the country. As a legal matter, the panel decision conflicts with published decisions of this Court. See McKenzie v. City of Chicago, 118 F.3d 552 (7th Cir. 1997). The Attorney General thus moves for a stay pending a forthcoming petition for rehearing en banc, and, if necessary, a petition for a writ of certiorari. The Attorney General respectfully requests that this motion be considered by the Court en banc under Internal Operating Procedure 1(a)(2). The Attorney General also respectfully suggests that this Court order a response to this motion by Friday, April 27, given the delays to the grant program and Chicago’s familiarity with these issues. The district court enjoined two conditions on federally funded grants for law enforcement purposes made by the Department of Justice to states and localities under the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG

Program”). Both conditions concern aliens in the United States who have committed or are suspected of committing crimes, and who are being held in custody by the grantee jurisdiction for its own law enforcement purposes. The first condition requires that, with respect to any “program or activity” funded by this lawenforcement related grant, the grantee respond to a specific written request from the federal government to provide notification of an alien’s release date. The second condition, a measure to ensure the safety of federal law enforcement officials and the public, requires that the grantee allow federal agents access to correctional facilities for the purpose of meeting with aliens in order to inquire about their right to remain in the United States. The district court concluded that these two conditions were not authorized by the statute governing the Byrne JAG Program. Although the government respectfully disagrees with the panel’s ruling on the merits, for present purposes a stay is needed from the en banc court only to correct the flawed nationwide application of this ruling.
Although the only plaintiff in this action is the City of Chicago, the district court did not limit its injunction to the City, but instead made its order applicable to all grant applicants across the country. The district court did not suggest that extending its order to non-parties nationwide was in any respect necessary to prevent injury to Chicago. Nor did the panel majority, in affirming this broad injunction, suggest that such a sweeping injunction was necessary to remedy Chicago’s asserted injury. Instead, the panel majority justified the scope of the order based on: its view
2

that consideration of the legal issue by multiple courts was unnecessary because the legal question involved “will not vary from one locality to another,” Maj. Op. 30; its belief that “[t]he public interest would be ill-served here by requiring simultaneous litigation of this narrow question of law in countless jurisdictions,” particularly as some of them had filed amicus briefs, Maj. Op. 32-33; and mistaken assumptions about the operation of the Byrne JAG Program, Maj. Op. 34.
This request for a partial stay does not ask the Court to consider at this juncture the panel majority’s ruling on the merits of the underlying dispute. It asks only that the Court apply settled principles of standing and equity to limit the application of the injunction to the plaintiff, as urged by Judge Manion’s partial dissent. See Partial Dissent 41-49. The panel majority’s decision on this question directly conflicts with this Court’s decision in McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997), which reversed an injunction that precluded the City of Chicago from operating a demolition program with respect to entities other than the plaintiffs. In that case, the Court explained that when “a class has not been certified, the only interests at stake are those of the named plaintiffs,” and that in the absence of certification a court cannot “grant relief to non-parties.” Id. at 555; see also Scherr v. Marriott International, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (plaintiff lacked standing to seek an injunction broader than necessary to remedy her own injury); Laskowski v. Spellings, 546 F.3d 822, 825 (7th Cir. 2008) (“The general rule is that a plaintiff has
3

standing to sue only for injuries to his own interests that can be remedied by a court order.”).
The panel majority did not attempt reconcile its opinion with decisions such as McKenzie. Indeed, the panel majority did not even reference McKenzie. The panel majority’s conclusion also cannot be reconciled with Supreme Court precedent establishing that the plaintiff must establish standing “separately for each form of relief sought,” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted), and that injunctions must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Nor did the panel cite United States v. Mendoza, 464 U.S. 154, 162 (1984), which established that “nonmutual collateral estoppel . . . does not apply against the Government in such a way as to preclude relitigation of issues.” The nationwide injunction affirmed in this case effectively supersedes pending litigation about the challenged conditions in other courts.
The clear conflict with the precedent of this Court and the Supreme Court makes it appropriate to review en banc the question of a district court’s authority to make an injunction applicable to non-parties nationwide, especially since that question is a recurring one of exceptional importance. A partial stay will result in no injury whatsoever to the City of Chicago, which does not stand to lose any money based on the application of the conditions to other jurisdictions. In contrast, a stay will allow the grant program to go forward with respect to the hundreds of other applicants who
4

have neither intervened in this suit nor filed their own actions and, indeed, may not dispute the validity of the conditions and may even agree with them. Because of the nationwide injunction, however, the government is unable to issue the grants to any jurisdictions unless it drops conditions that it believes are lawful and warranted. This Court’s decisions make clear that no sound basis exists for the ongoing impairment of a significant national grant program, and we respectfully urge the Court to issue a partial stay pending its consideration of a petition for en banc review and, if necessary, a petition for a writ of certiorari.
STATEMENT A. Grants Under the Byrne JAG Program Congress created the Byrne JAG Program in 2006 to provide additional funding to state and local law enforcement agencies. See Pub. L. No. 109-162, 119 Stat. 2960 (2006). The statute provides that “[f]rom amounts made available to carry out” the program, “the Attorney General may,” in accordance with a statutory formula, “make grants to States and units of local government” for certain criminal justice purposes. 34 U.S.C. § 10152(a)(1). The grant funds are divided among grantees based on a statutory formula, largely premised on population and crime statistics. Id. § 10156. When the Office of Justice Programs (OJP)—the Department of Justice entity that administers the program—approves a Byrne JAG application, it sends a grant award document to the applicant, which enumerates, among other things, the
5

conditions applicable to the award. See Hanson Decl., Dkt. 32-1, Exs. A-C [App. 4499]; OJP Grant Process Overview, available at https://ojp.gov/funding/Apply/Grant Process.htm. Applicants then typically have 45 calendar days to review the special conditions and accept the award documents. See OJP Grant Process Overview. The special conditions at issue here were premised on authority vested in the Assistant Attorney General for OJP to “plac[e] special conditions on all grants” and to “determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6). The two conditions at issue here are designed to ensure a minimum degree of cooperation between federal immigration authorities and the states and localities that receive Byrne JAG funds. The Immigration and Nationality Act permits state criminal proceedings to take precedence over federal immigration proceedings, and the conditions are designed to ensure that states and localities will not use this precedence to frustrate federal immigration enforcement. See, e.g., 8 U.S.C. § 1231(a)(1)(B)(iii) (90-day “removal period” for an incarcerated alien does not begin until after the date of the alien’s release).
OJP has received nearly 1,000 applications from state and local jurisdictions seeking fiscal year 2017 Byrne JAG Program funds. Hanson Second Decl., Dkt. 82 ¶ 4. Prior to the entry of the nationwide preliminary injunction, OJP had aimed to issue fiscal year 2017 Byrne JAG Program awards by September 30, 2017, which is the end of the relevant fiscal year. Id. ¶¶ 7-8. But because of the nationwide injunction, OJP
6

has not distributed the grants to any jurisdictions since the injunction was issued, as it cannot do so without dropping the challenged conditions.
B. Prior Proceedings 1. The City of Chicago filed this lawsuit to challenge three conditions that OJP intended to place in Chicago’s Byrne JAG Program award documents for fiscal year 2017. See Compl., Dkt. 1. The district court concluded that two of the conditions are not authorized by the governing statute. The first condition, which the district court referred to as the “notice” condition, requires that, with respect to any “program or activity” funded by the grant, the grantee must have a policy designed to ensure that, when DHS provides a formal written request for advance notice of the scheduled release date and time for a particular alien at a particular facility, the facility will “as early as practicable” provide the notice to DHS. Hanson Decl., Dkt. 32-1, Ex. A, ¶ 56.1.B [App. 63]. The second condition, which the district court referred to as the “access” condition, requires that, with respect to any “program or activity” funded by the grant, the grantee must have a policy designed to ensure that federal agents are “given access” to correctional facilities for the purpose of meeting with aliens and to “inquire as to such individuals’ right to be or remain in the United States.” Hansen Decl., Dkt. 32-1, Ex. A, ¶ 56.1.A [App. 63].1
1 The district court rejected Chicago’s challenge to an additional condition (which the City previously accepted in FY 2016) that requires grant recipients to certify compliance with 8 U.S.C. § 1373. See Merits Op., Dkt. 78, at 20-35 [Short Appendix 20-35]; Hanson Decl., Dkt. 32-1, Ex. C, ¶ 52 [App. 99].
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The district court issued a preliminary injunction with respect to the “notice” and “access” conditions, but did not limit its injunction to Chicago, the only plaintiff in the case. Chicago did not claim that a broader injunction was required to avoid irreparable harm to itself. Nevertheless, the district court declared that “[t]his injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.” Merits Op., Dkt. 78, at 41 [Short Appendix 41].
2. On October 13, the district court denied the government’s motion for a partial stay regarding the application of the injunction to non-parties. The court stated that it had broad remedial authority to address a constitutional violation, and that the legal issues would not differ from jurisdiction to jurisdiction. Stay Op., Dkt. 98, at 4-6 [App. 103-05]. The court expressed the view that “judicial economy counsels against” requiring other jurisdictions who wished to challenge the rulings “to file their own lawsuits,” particularly because some of them had filed amicus briefs. Stay Op., Dkt. 98, at 11 [App. 110]. A panel of this Court denied a partial stay on November 21, 2017. But because this Court promptly set a briefing schedule and scheduled oral argument for January 19, 2018, the government did not seek a stay from the en banc Court or the Supreme Court.
3. On April 19, 2018, the same panel affirmed the district court’s injunction, holding that Chicago “established a likelihood of success on the merits of its
8

contention that the Attorney General lacked the authority to impose the notice and access conditions on receipt of the Byrne JAG grants.” Maj. Op. 24.
The panel divided on the issue presented by this motion for a partial stay— whether the district court exceeded its authority in extending the injunction to nonparties across the country. The panel majority held that Chicago had standing to seek equitable relief as to its own grant, and that it was unnecessary for Chicago to demonstrate an injury resulting from issuance of grants to all the other jurisdictions in the country. Maj. Op. 28. The panel majority likewise concluded that the injunction did not constitute an abuse of the district court’s equitable authority for three reasons. First, the panel majority expressed its view that nationwide relief was appropriate because “the challenge here presents purely a narrow issue of law” that “will not vary from one locality to another,” Maj. Op. 30, and that, in its view, the case therefore “does not present the situation in which the courts will benefit from allowing the issue to percolate through additional courts,” Maj. Op. 31. Second, the panel majority concluded that “[t]he public interest would be ill-served here by requiring simultaneous litigation of this narrow question of law in countless jurisdictions,” Maj. Op. 32-33, declaring that amicus briefs indicated that “a significant number of award recipients oppose the conditions,” Maj. Op. 33. Third, the majority held that “the structure of the Byrne JAG program itself supports . . . a nationwide injunction,” based on the panel’s assumption that “the recipients of the grant are interconnected”
9

because available funds might be redistributed among applicants in the event some jurisdictions are unwilling to accept the conditions. Maj. Op. 34.
Judge Manion dissented from the majority’s view of the scope of relief, stating that the majority mistakenly endorsed “a gratuitous application of an extreme remedy” by “bypass[ing] Supreme Court precedent, disregard[ing] what the district court actually concluded concerning the equities in this case, and misread[ing] the effect of providing relief to Chicago only.” Partial Dissent 42. Judge Manion noted that the nationwide injunction circumvents the Supreme Court’s clear statement that “nonmutual collateral estoppel . . . does not apply against the Government in such a way as to preclude relitigation of issues.” Id. (quoting United States v. Mendoza, 464 U.S. 154, 162 (1984)). Responding to the majority’s view that Mendoza does not apply when a case presents a purely legal question, Judge Manion observed that “if a lack of factual differentiation is all that is needed to distinguish Mendoza, then a nationwide injunction is appropriate in every statutory-interpretation case. That cannot be the law.” Partial Dissent 43. Turning to the balance of the equities, Judge Manion noted that the district court had found the equities in equipoise, and saw “no basis to second-guess the reasoning of the district court.” Partial Dissent 45. He further observed that the majority’s concern that litigation in multiple fora would not be in the public interest was misplaced, as it ignored the availability of class action relief. Partial Dissent 46. Such relief “has the benefit of dealing with the one-way-ratchet nature of the nationwide injunction,” as it would bind both the government and the
10

class members, rather than permitting plaintiffs multiple “bites at the apple” in suits against the government. Id. Finally, Judge Manion pointed out that “the structure of the Byrne JAG program does not require granting relief to non-parties,” as “there are no provisions for redistribution of funds withheld for failing to abide by the Attorney General’s ‘special conditions,’” and even if such redistribution took place, “Chicago would benefit by getting more money.” Partial Dissent 48-49.
ARGUMENT The application of the district court’s injunction to non-parties across the country contravenes the unambiguous precedent of this Court as well as the Supreme Court and presents an issue of exceptional importance warranting review by the full Court. Moreover, the balance of harms and the public interest cut strongly against the nationwide injunction, which is unnecessary to remedy Chicago’s asserted injuries and which is gratuitously impeding the distribution of the grants to all other jurisdictions. For these reasons, this Court should stay the nationwide aspect of the injunction pending en banc review and, if necessary, certiorari review. I. A Partial Stay is Warranted Because the Panel Majority’s Decision Directly Contravenes this Court’s Precedent, Established Principles of Article III Standing, and Limitations on a Court’s Equitable Authority. A. To establish standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quotation marks omitted). “[S]tanding is not dispensed in gross,” and the plaintiff must
11

establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted).
Accordingly, this Court has made clear that “plaintiffs lack standing to seek— and the district court therefore lacks authority to grant—relief that benefits third parties.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997); see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”). As this Court has emphasized, “[t]he general rule is that a plaintiff has standing to sue only for injuries to his own interests that can be remedied by a court order.” Laskowski v. Spellings, 546 F.3d 822, 825 (7th Cir. 2008).
Applying this principle in McKenzie, this Court reversed an injunction that precluded the City of Chicago from operating a demolition program with respect to entities other than the plaintiffs. This Court noted the district court’s conclusion “that it was appropriate to enjoin the entire program, despite the lack of class certification, in order to prevent the City from violating the Constitution.” McKenzie, 118 F.3d at 555. Reversing that holding, this Court declared that the district court’s statement “assume[d] an affirmative answer to the question at issue: whether a court may grant relief to non-parties. The right answer is no.” Id.
Likewise, in Scherr v. Marriott International, Inc., 703 F.3d 1069 (7th Cir. 2013), this Court held that the plaintiff did not have standing to seek an injunction that went
12

beyond remedying her personal injury, even though the defendant allegedly committed the same legal violation more broadly. The Court noted that the plaintiff had established that she was suffering an imminent injury from the defendant’s use of spring-hinged door closers at one particular hotel, and affirmed the injunction as to that hotel. Id. at 1074-75. The plaintiff had not, however, established that she would be imminently injured by the defendant’s use of the same door closers at the defendant’s other hotels, and thus she did not have standing to pursue injunctive relief relating to other hotels. Id. at 1075.
These decisions, to which the panel majority made no reference, make clear that where “a class has not been certified, the only interests at stake are those of the named plaintiffs.” McKenzie, 118 F.3d at 555 (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976)). Thus, in Alvarez v. Smith, 558 U.S. 87, 92 (2009), plaintiffs lacked standing to seek declaratory and injunctive relief against the State’s practice of keeping property in custody without a prompt post-seizure hearing because the plaintiffs had already received the seized property or forfeited their claims to it. The Supreme Court explained that since class certification had been denied, the “only disputes relevant here are those between these six plaintiffs and the State’s Attorney . . . and those disputes are now over.” Id. at 93; see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (the plaintiffs “d[id] not represent a class, so they could not seek to enjoin [an agency order] on the ground that it might cause harm to other parties”).
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Basic principles of equity also require that the injunction be limited to the plaintiff in this case. Equitable principles require that injunctions “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, there is no dispute that Chicago’s injury would be completely remedied by an injunction limited to the City’s own grant.
B. As Judge Manion’s partial dissent explains, the injunction also contravenes principles established in United States v. Mendoza, 464 U.S. 154 (1984), in which the Supreme Court held that “nonmutual offensive collateral estoppel . . . does not apply against the Government in such a way as to preclude relitigation of issues.” Partial Dissent 42 (quoting Mendoza, 464 U.S. at 162). “[A]llowing nonmutual collateral estoppel against the Government . . . would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue,” and “would deprive [the] Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before [the] Court grants certiorari.” Partial Dissent 42-43 (quoting Mendoza, 464 U.S. at 160). As Judge Manion observed, “the Fourth and Ninth Circuits have both recognized [that] these concerns are just as present in the context of nationwide injunctions.” Partial Dissent 43 (citing L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011); Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393 (4th Cir. 2001)).
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As Judge Manion noted, the panel majority did not cite Mendoza, but “it implicitly attempts to distinguish that decision” on the ground that “this case ‘does not present the situation in which courts will benefit from allowing the issue to percolate through additional courts and wind its way through the system in multiple independent court actions.’” Partial Dissent 43 (quoting Maj. Op. 31). Judge Manion observed that the panel majority “claims this case is different from ones involving issues ‘for which the context of different factual scenarios will better inform the legal principle.’” Partial Dissent 43 (quoting Maj. Op. 31). He explained, however, that “if a lack of factual differentiation is all that is needed to distinguish Mendoza, then a nationwide injunction is appropriate in every statutory-interpretation case. That cannot be the law.” Id. The partial dissent admonished that “[w]e are not the Supreme Court, and we should not presume to decide legal issues for the whole country, even if they are purely facial challenges involving statutory interpretation.” Partial Dissent 44. Indeed, there are parallel challenges to the pending grant conditions in several other courts, and the nationwide injunction here renders the work of those courts meaningless. See City of Los Angeles v. Sessions, No. 17-7215 (filed Sept. 29, 2017); City of Philadelphia v. Sessions, No. 17-3894 (E.D. Pa.) (filed Aug. 30, 2017); City & County of San Francisco v. Sessions, No. 17-4642 (N.D. Cal.) (filed Aug. 11, 2017).
Judge Manion also took issue with the panel majority’s belief “that avoiding ‘widespread, duplicative litigation in the absence of’ a nationwide injunction is in the
15

public interest.” Partial Dissent 45-46 (quoting Maj. Op. 33). As Judge Manion explained, the way to avoid duplicative litigation is to file a class action suit. He noted that a “class action has the benefit of dealing with the one-way-ratchet nature of the nationwide injunction. A nationwide injunction ties the Attorney General’s hands when he loses, but if Chicago had lost here, then . . . other municipalit[ies] could have filed suit [or continued to litigate their existing suits] against the Attorney General in . . . other jurisdiction[s], and that process could in theory continue until a plaintiff finally prevailed. With a class action, a decision would bind those other municipalities just as it would bind the Attorney General, and they could not run off to the 93 other districts for more bites at the apple.” Partial Dissent 46.
The partial dissent also explained that no basis exists for the panel majority’s assumption that “the structure of the Byrne JAG program itself supports the district court’s determination to impose a nationwide injunction because the recipients of the grant are interconnected.” Maj. Op. 34. As Judge Manion noted, while the Byrne JAG statute “does provide situations in which money would be withheld and redistributed, there are no provisions for redistribution of funds withheld for failing to abide by the Attorney General’s ‘special conditions.’” Partial Dissent 48. And, as the partial dissent observed, even assuming that grants withheld from other jurisdictions were redistributed, “Chicago would benefit by getting more money.” Id.
Thus, the alleged rationale for permitting a nationwide injunction in International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017), has no applicability
16

here. Partial Dissent 48. Judge Manion noted that “the Fourth Circuit upheld a nationwide injunction on the President’s ‘travel ban’ because the plaintiffs were ‘dispersed throughout the United States,’ there was an interest in ensuring uniform application of immigration laws, and the court concluded the ban ‘likely violates the Establishment Clause.’” Partial Dissent 48 (quoting Int’l Refugee Assistance Project, 857 F.3d at 605). The partial dissent also noted that while “the Supreme Court declined to completely stay the injunction,” it did not “directly address[] the merits of why the injunction should be nationwide.” Id. (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2089 (2017)). “The same [purported] need to protect third parties to provide complete relief is not present here.” Id.
In sum, the settled Article III and equitable limits on the scope of injunctions apply with full force here. The nationwide aspect of the injunction is clear legal error and should be stayed pending further review. II. The Balance of Harms and the Public Interest Further Demonstrate
That a Partial Stay Is Warranted. Whereas a partial stay will result in no injury at all to Chicago, for the reasons already discussed, the stay is necessary to avoid interference with the operation of a nationwide grant program. The Office of Justice Programs has received nearly 1,000 applications from state and local jurisdictions for more than $250 million in available FY 2017 Byrne JAG Program funds. Hanson Second Decl., Dkt. 82 ¶ 4. Prior to the entry of the nationwide preliminary injunction, OJP had aimed to issue fiscal year
17

2017 Byrne JAG Program awards by September 30, 2017, and had already issued two awards. Id. ¶¶ 5, 7-8. In light of the injunction, however, DOJ cannot issue the grants with two conditions designed to promote a basic level of cooperation between governments in fulfilling their respective law enforcement responsibilities, a cooperation very much in the public interest.
If the federal government issues the grants subject to the terms of the injunction, it may well lose the ability to include the conditions even if the conditions are ultimately determined to be lawful. States and localities can spend the funds as soon as they are distributed, and attempts to include the conditions at a later date will face many difficulties. Although the Department thus has been delaying issuance of grants to all jurisdictions nationwide, further delay “would hinder the reasonably timely and reliable flow of funding” to support law-enforcement activity around the country, Hanson Second Decl., Dkt. 82 ¶ 10, impose particular burdens for localities with relatively small budgets, id. ¶ 11, and disrupt state grant-making processes under which states issue sub-awards of Byrne JAG Program funds, id. ¶ 12.
In sum, a partial stay will avoid irreparable harm to the federal government and jurisdictions throughout the country, while causing no injury to Chicago.
CONCLUSION For the foregoing reasons, the Court should issue a partial stay of the preliminary injunction insofar as it applies beyond plaintiff, the City of Chicago, pending a forthcoming petition for rehearing en banc and, if necessary, a petition for
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a writ of certiorari. The Court should consider this motion en banc under Internal Operating Procedure 1(a)(2), and should order a response from Chicago by Friday, April 27.

APRIL 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
JOHN R. LAUSCH, JR. United States Attorney
MARK B. STERN DANIEL TENNY
s/ Brad Hinshelwood BRAD HINSHELWOOD (202) 514-7823
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7256 Washington, DC 20530

19

CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 4,797 words. This motion was prepared using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced typeface.
s/ Brad Hinshelwood Brad Hinshelwood

CERTIFICATE OF SERVICE I hereby certify that on April 23, 2018, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
s/ Brad Hinshelwood Brad Hinshelwood

 
 Case: 1:17-cv-05720 Document #: 179 Filed: 06/26/18 Page 1 of 1 PageID #:3173

Case: 17-2991 Document: 134

Filed: 06/26/2018 Pages: 1

United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

June 26, 2018

By the Court:

No. 17-2991

CITY OF CHICAGO, Plaintiff-Appellee,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States,
Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:17-cv-05720
Harry D. Leinenweber, Judge.

O R D E R

The Attorney General has asked this court to review en banc the nationwide aspect of the injunction that was issued by the district court, and affirmed by the panel of this court, in the case of Chicago v. Sessions, No. 17-2991. He has not challenged the propriety of the injunction insofar as it applies to Chicago, nor has he challenged the panel's decision that the district court properly enjoined, as likely unconstitutional, the imposition of the notice and access conditions on the Byrne JAG Grant for Chicago. A majority of the judges in regular active service voted to grant the limited rehearing en banc on the narrow issue presented by the Attorney General: whether the preliminary injunction issued by the district court was properly applied beyond the City of Chicago to encompass jurisdictions nationwide.

Along with the request for that limited rehearing en banc, the Attorney General asked this court to stay the preliminary injunction insofar as it extended beyond the City of Chicago. A majority of the judges participating in the en banc rehearing of this case have voted to grant the stay requested by the Attorney General. The preliminary injunction issued by the district court will remain in effect as to the imposition of the conditions on the City of Chicago, but it is hereby STAYED as to geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court.

 
 Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 1 of 58 PageID #:3464

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE CITY OF CHICAGO,
Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States,
Defendant.

Case No. 17 C 5720 Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER This case involves the overlap, and potential conflict, between core areas of state and federal power: the state’s traditional police powers and the federal government’s broad, undoubted power over immigration. In order to advance federal immigration policies, the Attorney General attached several new immigration-related conditions to a longstanding federal grant which provides funds to local and state police departments. Those immigration-related conditions conflict with Chicago’s policy goals of promoting cooperation between local law enforcement and immigrant communities and ensuring access to essential city services for all city residents regardless of citizenship status. Chicago brought suit to enjoin the Attorney General from attaching those conditions to the grant funds.

Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 2 of 58 PageID #:3465
Before the Court is the Attorney General’s Motion to Dismiss the Complaint in its entirety and the City of Chicago’s Partial Motion for Summary Judgment on Counts I, II, and V. The Court addresses both below.
I. BACKGROUND In addition to reciting here the most relevant facts, the Court also incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937-40 (N.D. Ill. 2017), aff’d, 888 F.3d 272 (7th Cir. 2018), en banc reh’g granted and vacated in part by Order, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128. The dispute centers around the Edward Byrne Memorial Justice Assistance Grant (the “Byrne JAG grant”), a federal grant named after a fallen New York City police officer which awards funds to states and local jurisdictions to support criminal justice initiatives for personnel, equipment, training, and other community services. See 34 U.S.C. § 10152(a). The Byrne JAG program distributes grant funds by a statutorily-defined formula based on a state’s population and the number of violent crimes reported within that jurisdiction in the past year. See 34 U.S.C. § 10156. To receive funds under the program, the would-be grantee must submit an application and comply with all conditions outlined
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in the Solicitation document provided by the Attorney General. (See 34 U.S.C. § 10153; see, e.g., FY 2017 Local Solicitation, Ex. T to Pl.’s Request for Judicial Notice, Dkt. No. 157-20.) The City of Chicago and its neighboring localities have received Byrne JAG funds every year since 2005. In 2016, Chicago used those funds to buy police vehicles and to support the efforts of non-profit organizations working in its high crime communities. (See Def.’s Resp. to Pl.’s Statement of Undisputed Material Facts (“Facts”) ¶ 14, Dkt. No. 168; Sachs Decl. ¶ 4, Dkt. No. 154.) The funds at issue now were originally earmarked to be distributed in 2017, but this litigation ensued. Should Chicago receive those 2017 funds, the City intends to expand its use of “SpotShotter” acoustic surveillance technology, which allows officers to pinpoint the location of gun shots across the City and thus respond more quickly. (Def.’s Resp. to Pl.’s Facts ¶ 15, Dkt. No. 168.)
The grant conditions causing Chicago umbrage are related to federal immigration enforcement. In 2016, the Attorney General determined that various state and local policies of withholding information and other cooperation from federal immigration authorities were frustrating the federal government’s immigrationrelated goals. (See May 31, 2016 Office of Inspector General Mem., Ex. H to Def.’s Request for Judicial Notice, Dkt. No. 140-8.)
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Citing public safety concerns, the Attorney General announced that
the Department of Justice (“DOJ”) would award Byrne JAG grants
only to localities that: share certain immigration-related
information with federal immigration agencies, allow immigration
agents access to local detention facilities, and provide notice
before releasing certain undocumented individuals. (See DOJ Press
Release, Ex. B to Compl., Dkt. No. 1-2.) In this suit, Chicago
challenges all three of these new conditions (hereafter, “the
Conditions”):
1. The “Access Condition” requires that Byrne JAG recipients permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility to meet with undocumented immigrants and inquire as to their right to be or remain in the United States.
2. The “Notice Condition” requires that Byrne JAG recipients provide DHS at least 48 hours advance notice of the scheduled release date and time of an alien in the jurisdiction’s custody whenever DHS requests such notice in order to take custody of the alien upon release. The Attorney General later amended this Condition to clarify that “[i]n the event that . . . the scheduled release date and time for an alien are such as not to permit the advance notice [of scheduled release] . . . it shall not be a violation of this condition to provide only as much advance notice as practicable.”
3. The “Compliance Condition” requires that Byrne JAG recipients certify compliance with 8 U.S.C. § 1373, a federal statute that bars local governments from restricting the sharing of immigration status information with federal law enforcement.
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(See FY 2017 Local Solicitation, Ex. T to Pl.’s Request for Judicial Notice, Dkt. No. 157-20; Example Byrne JAG award documents, Exs. F, G to Jennings Decl., Dkt. No. 158.) The Attorney General added the Notice and Access Conditions for the first time in FY 2017, but the Compliance Condition also applied the previous year. (Def.’s Resp. to Pl.’s Facts ¶¶ 17-18.)
According to Chicago, these Conditions conflict with longstanding City policy of ensuring access to essential city services regardless of a resident’s citizenship status and of promoting cooperation between local law enforcement and immigrant communities. (See Compl. ¶ 1, Dkt. No. 1.) Chicago’s local policies protecting immigrant rights date back to 1985, when they were first embodied in executive orders and then eventually codified. (Def.’s Resp. to Pl.’s Facts ¶¶ 4-8, Dkt. No. 168.) The City’s Welcoming City Ordinance, enacted in 2012, encapsulates its current policy. (Id. ¶¶ 7-8.) Though Chicago’s policy and others like it are commonly referred to as “sanctuary city policies,” the Seventh Circuit has recognized the inaptness of that term. See City of Chicago v. Sessions, 888 F.3d at 281 (noting the term is “commonly misunderstood” and does not accurately describe the effect of such policies).)
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The Welcoming City Ordinance reflects both the City’s determination that effective police work relies on willing community assistance and its belief that the “cooperation of the city’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire city.” Chicago, Ill. Muni. Code § 2-173-005. The City intended the Welcoming City Ordinance to clarify both the communications and enforcement relationship between the City and the federal government as well as the specific conduct City employees are prohibited from undertaking, given the City’s view that such prohibited conduct would “significantly harm[] the city’s relationship with immigrant communities.” Id.
Specifically, the Ordinance prohibits all City agents and agencies from: requesting or disclosing information about an individual’s immigration status, id. §§ 2-173-020, -030; detaining anyone based solely on their immigration status or an ICE detainer, id. § 2-173-042(a); and spending on-duty time “responding to ICE inquiries or communicating with ICE regarding a person’s custody status or release date,” unless the responding City employee is “acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law,” id. § 2173-042(b). Notably, these prohibitions do not apply to certain
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classes of potentially dangerous individuals, including known gang members and those with outstanding criminal warrants, felony convictions, or pending felony charges. Id. § 2-173-042(c); see also Chicago Police Department (“CPD”)’s Special Order S06-14-03, Ex. F to Pl.’s Request for Judicial Notice, Dkt. No. 157 (reiterating the policies of the Welcoming City Ordinance and establishing rules for CPD officers in conformance therewith).
Chicago contends that the new Conditions put it in an untenable position, forcing the City either to accept the grant funds with the attached Conditions and—the City believes—lose the trust and cooperation of its immigrant communities or decline the grant and forgo much-needed funding for critical police resources and community services. (Compl. ¶ 9.) Chicago argues that the Constitution protects it from making this Hobson’s choice.
To that end, Chicago brings a seven-count Complaint, alleging constitutional infirmities and unlawful agency action. (See generally Compl., Dkt. No. 1.) Counts I and II allege the Conditions are unconstitutional because the Byrne JAG statute does not provide the Attorney General statutory authority to impose them. Count III alleges the Conditions violate the Spending Clause. Id. Chicago’s Count IV alleges that, independent of the Byrne JAG grant, Section 1373 is an impermissible federal
- 7 -

Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 8 of 58 PageID #:3471
conscription of state power and is thus unconstitutional under the anticommandeering doctrine. Id. Next, Chicago charges in Count V’s declaratory judgment claim that even if Section 1373 is constitutional, the City complies with it and deserves judgment to that effect. Id. In Count VI, the City alleges the Attorney General’s decision to impose the Conditions was arbitrary and capricious and thus violated the Administrative Procedures Act (“APA”). Id. And finally, Count VII alleges violations of the Paperwork Reduction Act. Id.
After filing its Complaint, Chicago moved for a preliminary injunction as to all three Conditions. This Court found that Chicago was likely to succeed on its argument that the Attorney General lacked the statutory grant of authority to impose the Notice and Access Conditions and accordingly enjoined those Conditions nationwide. See City of Chicago v. Sessions, 264 F. Supp. 3d at 943. However, the Court refused to enjoin the third condition, the Compliance Condition, finding the City not likely to succeed in arguing either that the Attorney General lacked the authority to impose it or that Section 1373—again, the statute with which Chicago must certify compliance under this third Condition—is unconstitutional. Id. at 945-46. The Attorney General appealed.
- 8 -

Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 9 of 58 PageID #:3472
The Seventh Circuit panel affirmed, agreeing that Chicago demonstrated a likelihood of success that the Byrne JAG statute does not grant the Attorney General the authority to impose the Notice and Access Conditions and approving this Court’s corresponding issuance of the nationwide preliminary injunction. See City of Chicago v. Sessions, 888 F.3d 272, 287, 293 (7th Cir. 2018), en banc reh’g granted and vacated in part by Order, No. 172991 (7th Cir. June 4, 2018), Dkt. No. 128. The Attorney General petitioned the Seventh Circuit for rehearing en banc. See Def.’s Petition for Rehearing En Banc, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Apr. 27, 2018), Dkt. No. 120. The Seventh Circuit granted the Attorney General’s petition on the limited issue of the injunction’s nationwide scope, thus vacating that portion of the panel opinion but leaving intact the finding that the Notice and Access Conditions are likely unlawful. See En Banc Order, City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128.
Turning to the matters now before the Court: The Attorney General moves to dismiss Chicago’s Complaint in its entirety, and Chicago cross-moves for partial summary judgment. The Attorney General moves to dismiss the Complaint on two grounds, raising challenges to both this Court’s subject matter jurisdiction and to
- 9 -

Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 10 of 58 PageID #:3473
the sufficiency of Chicago’s Complaint. See FED. R. CIV. P. 12(b)(1), (6). For its part, Chicago moves for summary judgment on only Counts I, II, and V. The City requests, first, a finding that all three Conditions are not authorized by the Byrne JAG statute and are thus ultra vires (Count I) and in violation of the separation of powers (Count II). With that request, the City urges the Court to reconsider its earlier-expressed belief that Chicago was not likely to succeed on this argument as to the Compliance Condition. Second, Chicago requests a declaratory judgment that, assuming the Compliance Condition is valid, the City complies with Section 1373 (Count V).
II. STANDARDS OF REVIEW As already described, the Attorney General moves to dismiss both by challenging jurisdiction and by asserting that the Complaint fails to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(1), (6). To survive a 12(b)(1) motion, the plaintiff must carry the burden of providing sufficient evidence to establish a prima facie case for personal jurisdiction. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). To survive a 12(b)(6) motion, the plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), and “give the
- 10 -

Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 11 of 58 PageID #:3474
defendant fair notice of what the claim is and the grounds upon which it rests,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and alteration omitted). On a 12(b)(6) motion, the reviewing court accepts all well-pleaded facts as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draws reasonable inferences in favor of the plaintiff, Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014) (citation omitted). In doing so, the court may consider the “complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (citations omitted).
Chicago cross-moves for summary judgment, which is proper where the record shows no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears the burden of establishing the absence of any genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the Court construes all facts and reasonable inferences in the light most favorable to the nonmovant, Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 874 (7th Cir. 2015) (quotation marks and citation
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omitted). In ruling on summary judgment, courts do not determine the truth of disputed matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
III. DISCUSSION A. Jurisdiction Before the Court turns to the merits of this dispute, it must address the threshold objection raised by the Attorney General in his 12(b)(1) motion. In short, the Attorney General argues that because the DOJ has not yet reached a final decision on whether to award Chicago funds under the Byrne JAG grant, the DOJ has not yet consummated any “final agency action” that is ripe for judicial review. 5 U.S.C. § 704; see Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (“In the context of judicial review under the APA, a challenge to agency conduct is ripe only if it is filed after the final agency action.”). Chicago responds that its lawsuit does not challenge the Attorney General’s not-yet-finalized decision whether to award the funds, but rather the decision to attach the Conditions to the grant in the first instance. The Court agrees with Chicago that this earlier determination is the one challenged by this suit. (See Compl. at 45 (requesting that this Court “[d]eclare that all three
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Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 13 of 58 PageID #:3476
immigration-related conditions for the FY 2017 Byrne JAG are unlawful”).)
“[T]wo conditions must be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted); cf. Shanty Town Assocs. Ltd. v. EPA, 843 F.2d 782, 788 (4th Cir. 1988) (evaluating EPA’s imposition of conditions on a federal grant under the APA). Both of these conditions are clearly met here. The imposition of these Conditions by the Attorney General is far from “tentative”; Alan Hanson, the Acting Assistant Attorney General for the Office of Justice Programs at the DOJ, states in his declaration that every FY 2017 award—presumptively including the award Chicago seeks here—will include conditions identical to those attendant to the grant awards already handed out to Binghamton and Greenville, the only two cities to receive Byrne JAG funds thus far. (See Hanson Decl. ¶¶ 1, 5-6, Dkt. 32-1 (“[T]he award documents set[] out the various conditions . . . that will apply to the FY 2017 Byrne JAG award” (emphasis added)); see also Def.’s Resp. to Pl.’s Facts
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Case: 1:17-cv-05720 Document #: 198 Filed: 07/27/18 Page 14 of 58 PageID #:3477
¶ 27, Dkt. No. 168.) Both of those awards explicitly require compliance with all three Conditions. (See Example Byrne JAG Award Documents, Exs. F, G to Jennings Decl., Dkt. Nos. 158-6, 158-7.) Further, all FY 2017 awards, including Chicago’s potential one, are awarded based on applications invited by that year’s grant Solicitation, which clearly imposes the Conditions as well. (FY 2017 Local Solicitation, Ex. T to Pl.’s Request for Judicial Notice, Dkt. No. 157-20; see also Def.’s Resp. to Pl.’s Facts ¶¶ 27-30, Dkt. No. 168.) Thus, the Attorney General’s attachment of the Conditions is the end result of his decision-making process on this score. That satisfies the first requirement for finality under the APA. See Bennett, 520 U.S. at 177-78.
The second requirement is met as easily as the first. The Conditions attached to the Byrne JAG funds trigger important legal and practical consequences: They force Chicago to choose between accepting the award with the Conditions or forgoing the award in favor of maintaining the City’s policy preferences. See City of Chicago v. Sessions, 264 F. Supp. 3d at 940 (finding the Notice and Access Conditions irreconcilable with Chicago’s Welcoming City Ordinance); see also Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir. 1992) (finding agency action final where plaintiff faced “a dilemma: comply with a rule that harms [it] and that [it]
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believe[s] to be invalid or violate the rule at the risk of incurring a heavy penalty” (citation omitted)). The second requirement is met, and the Court accordingly finds that the Attorney General’s decision to impose the Conditions constitutes final agency action that is ripe for judicial review.
Finally, the Court notes that all of its sister courts in parallel cases have reached the same conclusion. See, e.g., City of Philadelphia v. Sessions, No. 17-3894, 2018 WL 1305789, at *1819 (E.D. Pa. Mar. 13, 2018) (finding the Attorney General’s imposition of the Conditions on the Byrne JAG grant was final); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 103031 (N.D. Cal. 2018) (same).
For reasons that will become clear, the Court considers Chicago’s claims out of order.
B. Anticommandeering Doctrine (Count IV) The Attorney General moves to dismiss Count IV, in which Chicago alleges that Section 1373 unconstitutionally tramples upon the Constitution’s anticommandeering doctrine by robbing local policymakers of the option to decline to administer the federal immigration programs Section 1373 supports. See New York v. United States, 505 U.S. 144, 177 (1992) (applying the anticommandeering doctrine to claims involving New York’s forced participation in a
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federal program); see generally Printz v. United States, 521 U.S. 898 (1997) (applying the anticommandeering doctrine to claims involving conscription of local officials). This Court previously held that Chicago was unlikely to succeed on this argument given that under then-current case law, “only affirmative demands” on states—as opposed to proscriptions—transgressed the Tenth Amendment. City of Chicago v. Sessions, 264 F. Supp. 3d at 949. Section 1373 imposes no affirmative demand on local governments, even though, in practical effect, the statute “may effectively thwart policymakers’ ability to extricate their state or municipality from involvement in a federal program.” Id. As such, this Court hesitated to expand the anticommandeering doctrine to a terrain that no higher court had yet seen fit to cover. But then, eight months after this Court’s preliminary injunction ruling, the Supreme Court navigated that ground in Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018).
Murphy concerned the Professional and Amateur Sports Protection Act (“PASPA”), a federal law that prevented states both from legalizing sports gambling and from repealing existing state laws prohibiting it. Id. at 1470-71. New Jersey passed a law partially repealing its gambling prohibition anyway, claiming it could do so because PASPA’s edict to the contrary violated the
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Constitution’s anticommandeering principle. Id. at 1472. Before the Supreme Court, the Murphy respondents argued PASPA could not violate the Tenth Amendment because—much like this Court observed in its preliminary injunction ruling—the Supreme Court had only found such violations in cases where Congress went “beyond precluding state action and affirmatively command[ed] it.” Id. at 1478. But the Court rejected this argument, finding the “distinction . . . empty.” Id. It reasoned that regardless whether a federal law commands state action or precludes it, “[t]he basic principle that Congress cannot issue direct orders to state legislatures” still applies. Id. (alteration omitted). The reasoning highlights the Supreme Court’s reluctance to rely on a distinction more reflective of sophisticated draftsmanship than substantive effect. Thus, PASPA, which “unequivocally dictate[d] what a state legislature may and may not do,” was held to be unconstitutional. Id. That holding pulls the lynchpin from this Court’s earlier Section 1373 constitutionality analysis and demands that this Court reconsider that statute with fresh eyes.
But before delving further into the anticommandeering analysis, the Court must first dispose of a threshold argument. The Attorney General argues that no anticommandeering claim exists here because compliance with Section 1373 is merely a condition on
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grant funds which Chicago is free to refuse. This argument ignores that Section 1373 is an extant federal law with which Chicago must comply, completely irrespective of whether or not the City accepts Byrne JAG funding. And the City’s Count IV clearly recites Chicago’s anticommandeering challenge to the law itself, not to the law as a condition imposed on the grant. (See Compl. ¶¶ 132135 “Section 1373 is . . . facially unconstitutional”).) This distinction is important. No Tenth Amendment problem exists when a federal agency imposes grant conditions, because the Spending Clause empowers the federal government to offer funds in exchange for state action it could not otherwise demand. See NFIB v. Sebelius, 567 U.S. 519, 537 (2012) (observing that the federal government may award grant funding that “may well induce the States to adopt policies that the Federal Government itself could not impose” (citation omitted)); South Dakota v. Dole, 483 U.S. 203, 210 (1987) (finding a “Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants”). But Section 1373 is not a grant condition which Chicago may freely shirk. It is a federal law and as such may be challenged on an independent ground, as Chicago has here, notwithstanding that certifying
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compliance with Section 1373 appears as a condition for Byrne JAG funding.
The Court now turns to the statute itself: Section 1373. Congress enacted Section 1373 in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (included as part of the Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, 110 Stat 3009 (1996)). The Act is part of a comprehensive federal statutory scheme to regulate immigration. See Arizona v. United States, 567 U.S. 387, 401 (2012); DeCanas v. Bica, 424 U.S. 351, 353 (1976). In relevant part, Section 1373 provides:
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
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(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. § 1373. The Court’s inquiry “begin[s] with the time-honored presumption that [a statute] is a constitutional exercise of legislative power.” Reno v. Condon, 528 U.S. 141, 148 (2000) (internal quotation marks and citation omitted). But this presumption has limits. “While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, 505 U.S. at 162 (applying anticommandeering doctrine). Not all laws prohibiting state action are constitutionally problematic. In Reno, for example, the Court denied a Tenth Amendment challenge to a federal law restricting both state and private actors from disclosing or disseminating personal information provided in applications for driver’s licenses. 528 U.S. at 151. That law did not “require the States in their sovereign capacity to regulate their own citizens,” but rather permissibly regulated the States “as the
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owners of data bases.” Id. In contrast stands Printz, wherein the Court struck down a statute requiring state officials to perform background checks on prospective handgun purchasers. 521 U.S. at 935. There, the federal scheme did not apply with equal force to State and private actors; instead, the law commanded state officers—and only state officers—to administer and enforce a federal regulatory program. Id.; see Travis v. Reno, 163 F.3d 1000, 1003-04 (7th Cir. 1998).
The question under Murphy, Reno, and Printz is whether Section 1373 “evenhandedly regulates an activity in which both States and private actors engage,” as opposed to regulating activities undertaken by government entities only, thus conscripting state action in the implementation of a federal scheme. Murphy, 138 S. Ct. at 1478. In other words, although the federal government may “pervasively regulate[] the states as marketplace participants,” it may not “call[] on the states to use their sovereign powers as regulators of their citizens.” Travis v. Reno, 163 F.3d 1000, 1004–05 (7th Cir. 1998). Section 1373 imposes two overlapping regulations: First, subsection (a) prohibits any “government entity or official” from restricting any other “government entity or official” from exchanging immigration status information with INS. As is apparent, subsection (a) is
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directed exclusively to state actors. Second, subsection (b) prohibits any “person or agency” from doing the same. 8 U.S.C. § 1373. Subsection (b) does not meaningfully expand the statute’s scope by including “person[s]”: Who but a government actor can restrict the activities of a government entity or official? See id.
The import is clear: Section 1373 does not evenhandedly regulate activities in which both private and government actors engage. Thus, the saving grace of Reno does not apply here. Rather, this statute mandates that local government employees have the option of furnishing immigration information to the INS while acting in their official, state-employed capacities. Unlike in Reno, the anticommandeering doctrine applies, and here it is offended in four ways.
First, Section 1373 supplants local control of local officers; the statute precludes Chicago, and localities like it, from limiting the amount of paid time its employees use to communicate with INS. This weighs heavily on the constitutionality analysis. A state’s ability to control its officers and employees lies at the heart of state sovereignty: “To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. Indeed, it merits
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the description ‘empty formalistic reasoning of the highest

order.’” Printz, 521 U.S. at 931 (citation omitted). Adding

credence to this constitutional objection is the fact that the

information at issue is state-owned and only accessible to city

employees in their official capacities. Id. at 932 n.17 (noting

that a constitutionally-impermissible statute required state

employees “to provide information that belongs to the State and is

available to them only in their official capacity”).

To

illustrate further, it is clear under Printz that an explicit

federal directive to state employees is unconstitutional. See

Murphy, 138 S. Ct. at 1477 (characterizing Printz). Given the

pre-Murphy command-versus-proscription dichotomy, Congress,

perhaps cautious of running afoul of the Tenth Amendment by

demanding that states share immigration-status information,

drafted Section 1373 to avoid the potential Printz problem by

framing it as a prohibition on, rather than a directive to, state

employees. Rather than requiring state employees to share

immigration information with federal authorities, Section 1373

prohibits state policymakers from preventing their employees from

sharing. See 8 U.S.C. § 1373. Yet as Murphy demonstrates, this

draftsmanship does not diminish the infringement on state

sovereignty. To analogize to Printz: the Brady Act considered

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there would still be unconstitutional even if, rather than affirmatively requiring state employees to complete background checks, the Act instead prohibited state policymakers from preventing state employees from doing the same.
Second, the statute indirectly constrains local rule-making by precluding city lawmakers from passing laws, like the Welcoming City Ordinance, that institute locally-preferred policies which run counter to Section 1373. This was the concern squarely addressed in Murphy, where the Court observed that a “more direct affront to state sovereignty is not easy to imagine” than in a federal law that “dictates what a state legislature may and may not do.” Murphy, 138 S. Ct. at 1478. True, the statute in Murphy, which explicitly forbade local lawmaking, presented a clearer case than the one at bar. See id. But the spirit of Murphy is not diminished here, where Section 1373 imposes a blanket, if indirect, prohibition on certain local lawmaking. See id.; see also Printz, 521 U.S. at 928 (“It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority.”); United States v. California, No. 2:18 CV 490, 2018 WL 3301414, at *13 (E.D. Cal. July 5, 2018) (“Section 1373 does just what Murphy proscribes: it tells States they may not prohibit (i.e., through legislation) the
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sharing of information regarding immigration status with the INS

or other government entities.”)

Third, Section 1373 redistributes local decision-making power

by stripping it from local policymakers and installing it instead

in line-level employees who may decide whether or not to

communicate with INS.

This effects a federally-imposed

restructuring of power within state government. See Spencer E.

Amdur, The Right of Refusal: Immigration Enforcement and the New

Cooperative Federalism, 35 Yale L. & Pol’y Rev. 87, 136 (2016).

The Supreme Court tussled with a similar problem in Printz. In

that case, the background-check law required local officials to

make “reasonable efforts” within five days of receiving

information regarding a prospective gun purchase to determine

whether the sales therein described were lawful. 521 U.S. at 905.

The government argued unsuccessfully that the anticommandeering

doctrine prohibits only federal statutes compelling states to make

certain law, but not statutes that simply require local officials

to provide “limited, non-policymaking help in enforcing [federal]

law.” Id. at 927. The Supreme Court did not agree with that

distinction, pointing out that the decision concerning what

“reasonable efforts” should be expended in conducting a background

check is “preeminently a matter of policy.” Id. at 927-28. In

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this case, Section 1373 prohibits the City from restricting its employees’ communications with federal immigration authorities. As such, the degree of discretion afforded to each City employee or police officer is broad indeed. Beyond simply determining what constitutes “reasonable efforts,” as in Printz, City employees may decide for themselves whether to communicate with federal authorities at all. See id. This is certainly a matter a policy, and yet it is a matter that, under Section 1373, state policymakers are not allowed to touch.
Finally, because Section 1373 eliminates the City’s ability to control its employees’ communications with INS, the statute prevents Chicago from extricating itself from federal immigration enforcement. Section 1373 thus impermissibly forecloses New York’s “critical alternative”: the option of non-participation in a federal program. New York, 505 U.S. at 176.
Beyond this, the policy rationales undergirding the anticommandeering principle further counsel its application in this case. Murphy articulated three such rationales: First, the principle protects individual liberty by dividing authority between federal and state governments; second, it promotes political accountability by clarifying whether laws and policies are promulgated by federal or state actors; and third, it prevents
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Congress from shifting the costs of regulation to the states. Murphy, 138 S. Ct. at 1477. Section 1373 flouts these rationales; the statute makes it difficult for citizens to distinguish between state and federal policy in the immigration context by barring states from adopting policies contrary to those preferred by the federal government. The statute also forces states to allow their employees to participate in the federal scheme, shifting employee time—and thus corresponding costs—to federal initiatives and away from state priorities.
Despite all this, the Attorney General contends that Section 1373 does not pose nearly the regulatory imposition Chicago claims. Instead, he says, the dictates of Section 1373 boil down to mere information sharing, which the Attorney General believes to be exempt from Tenth Amendment scrutiny. To that end, the Attorney General opines that “the analysis in Murphy would likely have been very different if PASPA had only required States to share information regarding sports betting operations to facilitate federal regulation.” (Def.’s Resp. at 4, Dkt. No. 176.) This Court is not so sure.
The Attorney General contends that information sharing is immune from challenge under the anticommandeering doctrine. From the Attorney General’s view, Congress could constitutionally
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require states to provide the federal government with immigrationrelated information. And if that is constitutional, then surely a statute merely requiring that states allow their employees to provide immigration-related information is also constitutional. Cf. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 21314 (4th Cir. 2002) (finding no Tenth Amendment violation where state medical boards were required to share doctors’ licensure information). The Attorney General rests his argument in favor of an information sharing carve-out on Printz. It is true that Printz’s dicta signals that such an exception might exist, but the opinion neither states an exception conclusively nor provides any guidance as to its contours. In Printz, the Supreme Court distinguished the unconstitutional Brady Act from a law “requir[ing] only the provision of information to the Federal Government,” but declined to elaborate on the distinction. 521 U.S. at 917-18. Justice O’Connor’s concurrence echoed the distinction, remarking that “the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.” Id. at 936 (O’Connor, J., concurring). Justice O’Conner cited 42 U.S.C. § 5779(a) as an example of such a federal statute, which requires
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state and local law enforcement agencies to report cases of missing

children to the DOJ. Id. In this way, the Supreme Court left open

whether a federal law demanding “only the provision of information

to the Federal Government” or else imposing “purely ministerial

reporting requirements” violates the anticommandeering doctrine.

Id. at 918, 936. Now, the Attorney General wants this Court to go

further than the Supreme Court has and hold that information

sharing is constitutionally unique.

Though this Court

acknowledges the open question, the Attorney General’s request is

a stretch too far. This Court will not, in the face of clear

guidance from Murphy and Printz, hang its hat on a possible

information sharing carve-out derived solely from dicta.

Still, the Attorney General argues that policy rationales

bolster his argument: Federal immigration efforts could be

frustrated if localities may prohibit their employees from sharing

immigration-related information with federal authorities. But

these rationales do not advance his position. First, the Seventh

Circuit has already rejected the Attorney General’s argument that

finding the Conditions unlawful allows the City to “thwart federal

law enforcement,” characterizing such argument as a “red herring.”

See City of Chicago v. Sessions, 888 F.3d at 282 (“[N]othing in

this case involves any affirmative interference with federal law

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enforcement at all, nor is there any interference whatsoever with federal immigration authorities. The only conduct at issue here is the refusal of the local law enforcement to aid in civil immigration enforcement . . . .”); see also United States v. California, No. 2:18 CV 490, 2018 WL 3301414, at *18 (E.D. Cal. July 5, 2018) (“Standing aside does not equate to standing in the way.”).
Granted, the concern that federal enforcement efforts will be impeded obviously extends to other federal initiatives that depend upon state information. See, e.g., Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 806, 84 Stat. 922, 939-40 (creating commission to evaluate national gambling policy, which was “authorized to call upon . . . States to furnish . . . statistical data, reports, and other information as the Commission deems necessary”). Yet this Court has found no controlling authority holding that such information sharing provisions are constitutionally impervious, and a mere policy rationale does not empower the Court to craft a constitutional exception heretofore unidentified in Tenth Amendment jurisprudence. Put more finely: A federal need for state information does not automatically free the federal government of the sometimes laborious requirement to acquire that information by constitutional means. See Printz, 521
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U.S. at 932-33 (rejecting the application of a balancing analysis even where the federal law at issue served important purposes); New York, 505 U.S. at 181 (“State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting))). In short, the federalist diffusion of power necessarily creates political barriers and inefficiencies. But these inefficiencies are part of federalism’s intended structure, not imperfections to be remedied by judicially-wrought consolidation of power. See New York, 505 U.S. at 187 (“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”).
Furthermore, Section 1373 is more than just an informationsharing provision. As described above, Section 1373 prohibits certain rule making by state policymakers. In doing so, Section 1373 presents more like the statute in Murphy and less like the innocuous missing-children law mentioned in Justice O’Connor’s Printz concurrence. Compare Murphy, 138 S. Ct. at 1478, with Printz, 521 U.S. at 936 (O’Connor, J., concurring) (citing 42
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U.S.C. § 5779(a)). Whether a different federal law merely requiring the submission of information but not explicitly prohibiting any state policymaking would be permissible under an information sharing carve-out is irrelevant; that is not the law before the Court now.
In sum, Section 1373 impermissibly directs the functioning of local government in contravention of Tenth Amendment principles, and the Attorney General’s reliance on the purported information sharing carve-out—which is not confirmed in Printz nor in any other controlling case—cannot save it. Section 1373 is thus unconstitutional on its face. See United States v. California, No. 2:18 CV 490, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (finding the constitutionality of Section 1373 “highly suspect”); City of Philadelphia v. Sessions, No. 17-3894, 2018 WL 2725503, at *31-33 (E.D. Pa. June 6, 2018) (holding Section 1373 unconstitutional under the anticommandeering doctrine).
In so holding, this Court must respectfully disagree with City of New York v. United States, 179 F.3d 29 (2d Cir. 1999). In that case, New York City implemented an executive order prohibiting City employees from providing federal immigration authorities with information concerning the immigration status of any individual unless certain circumstances applied. Id. at 31-33. The City
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then sued, challenging the constitutionality of Section 1373 under the Tenth Amendment. Id. at 33. The Second Circuit upheld the statute’s constitutionality, refusing to permit the City to engage in what the court of appeals called “passive resistance” to federal programs. Id. at 35. For several reasons, this Court declines to follow that decision’s lead.
First, the Supreme Court has explicitly approved of the type of passive resistance criticized in City of New York, finding that states have the prerogative to “not yield[] to federal blandishments when they do not want to embrace the federal policies as their own.” NFIB, 567 U.S. at 579 (internal quotation marks and citation omitted). Second, as this Court has noted once before, the balancing applied in City of New York is not the appropriate analysis in weighing encroachments on federalism. See City of Chicago v. Sessions, 264 F. Supp. 3d at 947 (citing Printz, 521 U.S. at 932; Travis v. Reno, 163 F.3d 1000, 1003 (7th Cir. 1998) (both opinions disavowing use of balancing analysis in Tenth Amendment challenges)). And yet, the strongest rationale for departing from City of New York is the same reason this Court took up reconsideration of Section 1373’s constitutionality in the first place. City of New York’s outcome ultimately does not depend on the balancing test it employs, but rather the distinction it
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draws between affirmative obligations and proscriptions. See City of Chicago v. Sessions, 264 F. Supp. 3d at 947-48 (characterizing City of New York). This is the same distinction that motivated this Court’s earlier finding that Chicago was not likely to succeed on its anticommandeering argument, and it is the same distinction the Supreme Court has since deemed “empty.” See Murphy, 138 S. Ct. at 1478. For the same reasons explained above, the Court believes that Murphy’s holding deprives City of New York of its central support and thus provides the Attorney General little counterweight to Chicago’s argument against this statute’s constitutionality. See id. In the end, Section 1373 requires local policymakers to stand aside and allow the federal government to conscript the time and cooperation of local employees. This robs the local executive of its autonomy and ties the hands of the local legislature. Such affronts to State sovereignty are not countenanced by the anticommandeering principle of the Constitution. Section 1373 is unconstitutional and cannot stand.
C. Ultra Vires and Separation of Powers (Counts I and II) In Counts I and II, Chicago claims that Congress did not
confer authority on the Attorney General to impose the Conditions, so his imposition treads upon the separation of powers and is ultra vires. City of Arlington v. FCC, 569 U.S. 290, 317 (2013)
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(“Agencies are creatures of Congress; ‘an agency literally has no power to act . . . unless and until Congress confers power upon it.” (internal quotation marks and citation omitted)).
1. Notice and Access Conditions The Attorney General moves to dismiss Counts I (ultra vires) and II (separation of powers), arguing that the Byrne JAG statute provides authority to impose the Conditions, and Chicago moves for summary judgment on the same counts. This Court previously granted Chicago a preliminary injunction as to the Notice and Access Conditions, finding that Chicago was likely to succeed on its argument that the Byrne JAG statute does not authorize them. City of Chicago v. Sessions, 264 F. Supp. 3d at 937-40. A panel of the Seventh Circuit affirmed that decision. City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), en banc reh’g granted on other grounds, vacated in part by Order, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128. In affirming, the Seventh Circuit found Chicago likely to succeed in arguing that neither Byrne JAG nor any other statute grants the Attorney General “the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.” Id. at 284. In so
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holding, the court rejected the Attorney General’s “untenable” contention that 34 U.S.C. § 10102(a)(6), which sets forth the functions of the Assistant Attorney General for the Office of Justice Programs, provides the Attorney General an expansive, stand-alone grant of authority to impose any conditions on grant recipients. Id. at 284-85. The court added that the structure of § 10102 and the Byrne JAG statute supported that conclusion, as § 10102 would be “an odd place indeed” for Congress to have squirreled away a sweeping grant of authority. Id. The Seventh Circuit concluded that “[t]he Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds.” City of Chicago v. Sessions, 888 F.3d at 277.
In light of the Seventh Circuit’s reasoning and considering that the Attorney General has not mustered any other convincing argument in support of greater statutory authority, nothing has shaken this Court from the opinion it expressed at the preliminary injunction stage. As such, for the same reasons stated in this Court’s preliminary injunction ruling and the Seventh Circuit’s
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opinion, the Court holds that the Notice and Access Conditions are unlawful. The Attorney General’s Motion to Dismiss is denied, and Chicago’s Motion for Summary Judgment is granted on Counts I and II as to the Notice and Access Conditions.
2. Compliance Condition The Attorney General’s authority to impose grant conditions extends only as far as Congress allows. See Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”). Whether the Attorney General has authority to impose the third and final condition turns on the meaning of the phrase “all other applicable Federal laws” as it appears in the Byrne JAG statute. Because this issue was not considered on appeal, the Court must proceed without the benefit of the Seventh Circuit’s guidance. See City of Chicago v. Sessions, 888 F.3d at 280 (expressing “no opinion” as to the denial of the Compliance Condition). We start with the text: (A) . . . To request a grant under this part, the chief executive officer of a State . . . shall submit an application to the Attorney General . . . in such form as the Attorney General may require. Such application shall include the following:
[. . .] (5) A certification . . . that--
(A) the programs to be funded by the grant meet all the requirements of this part;
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(B) all the information contained in the application is correct; (C) there has been appropriate coordination with affected agencies; and (D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 34 U.S.C. § 10153(A)(5)(D) (emphasis added). The parties offer competing interpretations of this language. The Attorney General argues that the word “applicable” refers to laws applicable to the grantee—here, the City—and thus covers any federal law that applies to Chicago; it follows that because Section 1373 plainly applies to “local government entit[ies],” Section 1373 falls within that broad sweep. 8 U.S.C. § 1373. Chicago offers a far narrower interpretation, comprising just those federal laws applicable to federal grantees generally. That is, according to Chicago, the “applicable Federal laws” countenanced by the Byrne JAG statute include only those laws that “by their express terms govern recipients of federal funds,” such as 42 U.S.C. § 2000d, which prohibits discrimination in “any program or activity receiving Federal financial assistance.” (Pl.’s Mem. in Supp. of Summ. J. at 6, Dkt. No. 152.) Chicago concludes that because Section 1373 does not expressly apply to federal grants, it is not an “applicable law” under the Byrne JAG statute.
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The Court already dealt with this question once, in its preliminary injunction ruling, and sees no convincing reason to depart from the analysis conducted there. Simply put, this statute is most consistent and coherent when “all other applicable Federal laws” is “read to mean what it literally says.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008) (citation omitted). The Supreme Court has “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254-55 (1992) (citations omitted). Here, the language is unambiguously expansive, the prefatory “all other” indicating a broad reading in line with the Attorney General’s interpretation. Cf. Norfolk & W. Ry. Co. v. Am. Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991) (“By itself, the phrase ‘all other law’ indicates no limitation.”). Had Congress intended to limit § 10153(A)(5)(D)’s reach to only a specific body of federal grantmaking laws, as Chicago argues, it easily could have. But Congress opted not to include additional, limiting language; instead, it used the capacious phrase “all other applicable Federal laws.” The Court is unpersuaded by Chicago’s attempt to create ambiguity where a plain reading of the Byrne JAG statute suggests none. See id.
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If the Court were conducting this ultra vires inquiry in a vacuum, it would conclude that because Section 1373 is generally applicable to Chicago, Section 1373 falls within the “applicable Federal laws” described in the Byrne JAG statute and thus counts among those statutes with which the Attorney General may lawfully demand compliance as a condition for funding. 34 U.S.C. § 10153(A)(5)(D). Instead, the Court concludes this analysis in light of its earlier finding that Section 1373 violates the anticommandeering principle and is unconstitutional. As an unconstitutional law, Section 1373 automatically drops out of the possible pool of “applicable Federal laws” described in the Byrne JAG statute. Cf. Branch v. Smith, 538 U.S. 254, 281-82 (2003) (observing that adherence to an unconstitutional state law is not mandated by a federal statute requiring congressional redistricting “as state law requires”). Thus, it makes no difference that the Court reads “all other applicable Federal laws” broadly; no matter the breadth of this provision, it will never capture an unconstitutional statute. See id. Accordingly, the Attorney General has no authority to demand compliance with Section 1373, hereby deemed unconstitutional, under the Byrne JAG statute.
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It is worth emphasizing a key constitutional distinction between Section 1373 and the Compliance Condition. Even though the Compliance Condition is substantively the same as Section 1373 because the Condition was designed to reinforce Section 1373’s requirements, the two are constrained by different constitutional limitations. The former is a federal statute carrying the force the law, while the latter is merely a condition imposed on a federal grant that Chicago may freely decline. This distinction matters because, as already described, the anticommandeering doctrine does not limit the conditions agencies may attach to federal grants. See Dole, 483 U.S. at 210 (reciting that the Tenth Amendment’s limit on congressional regulation of state affairs does not equally limit the conditions attachable to federal grants). Thus, the Compliance Condition does not fail because it violates the anticommandeering doctrine. It fails because the statutory authority on which it depends sanctions only the imposition of “applicable” federal laws; because Section 1373 no longer falls within that category, the authority for the Compliance Condition has been stripped away. Cf. Branch, 538 U.S. at 28182.
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Accordingly, the Attorney General’s Motion to Dismiss must be

denied, and Chicago’s Motion for Summary Judgment must be granted

on Counts I and II as to the Compliance Condition.

*

*

*

Granting Chicago summary judgment on Counts I and II affects

the balance of Chicago’s claims. It renders the remaining counts—

Counts III, V, VI, and VII—moot. The Court dismisses them as such.

D. Injunctive Relief

1. Permanent Injunction

As discussed above, this Court grants Chicago’s Motion for

Partial Summary Judgment on Counts I and II as to all three

Conditions. With the merits decided, Chicago asks the Court to

issue a permanent nationwide injunction. The Court may issue

permanent injunctive relief if the moving party demonstrates:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The

permanent injunction standard is essentially the same as the

standard for a preliminary injunction except that the plaintiff

must in fact succeed on its claims rather than merely show a

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likelihood of success. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987); compare id., with Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). This Court discussed in detail how Chicago met the four factors in its preliminary injunction ruling and now incorporates that analysis here. See City of Chicago v. Sessions, 264 F. Supp. 3d at 949-51. The material facts have not changed since that earlier ruling and adding the Compliance Condition to the mix does not change the Court’s evaluation of the harm caused by the unlawful Conditions. All three Conditions undermine Chicago’s ability to protect its relationship with its immigrant communities which the City contends is vital to effective law enforcement. As reflected by a fresh consideration of the four injunction factors, the circumstances here continue to demand equitable relief.
First, Chicago’s harm is irreparable and cannot be compensated by monetary damages. Chicago submits an affidavit from Lieutenant Kevin Hannigan, a longtime Chicago police officer, explaining that if the City complies with the Conditions, undocumented immigrants will be less likely to interact and cooperate voluntarily with local police, believing that such contacts could put them or their families at risk of deportation. (Def.’s Resp. to Pl.’s Facts ¶¶ 7, 11, Dkt. No. 168; Hannigan Decl.
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¶¶ 2, 5, Dkt. No. 155.) In Lieutenant Hannigan’s view, informed by twenty-nine years of experience, “requiring Chicago’s police officers to request immigration status would drive a wedge between [the CPD] and the local communities.” (Hannigan Decl. ¶ 5, Dkt. No. 155.) Doing so “would run the risk of alienating portions of the Chicago population; could increase hostility toward law enforcement in vulnerable areas of the City; and could deprive officers of valuable sources of information.” Id. If Chicago were to adopt such a policy, he avers “that the type of cooperation [the CPD is] able to achieve with immigrant communities would be materially damaged.” Id. Chicago adopted this view in its Welcoming City Ordinance, which the City clearly intended to protect against such harms: The Ordinance itself states that “[t]he cooperation of the City’s immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City” because the “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all . . . residents.” § 2-173-005 (emphasis added).
The Attorney General takes the contrary view, arguing that so-called sanctuary policies increase crime and make cities that implement them less safe. Of this the Court is not convinced.
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Chicago points out that not only are there no peer-reviewed studies supporting the AG’s proposed correlation, the scholarship on the subject actually suggests that such policies do not affect, and might even lower, crime rates. (See Def.’s Resp. to Pl.’s Facts ¶¶ 24-25 (noting University of California Riverside study found “no support” for proposition that “sanctuary policies lead to increased crime” and Center for American Progress study found “crime [] statistically significantly lower in sanctuary counties compared to nonsanctuary counties”).) But the Court need not delve into this factual determination. Cf. City of Chicago v. Sessions, 888 F.3d 272, 277 (7th Cir. 2018) (“Our role in this case is not to assess the optimal immigration policies for our country.”). The key point here is that the Attorney General offers no facts or affidavits belying Chicago’s declarations concerning the connections between its policies and the effectiveness of its police force. The Attorney General never addresses the abovediscussed harm to Chicago’s immigrant communities or considers that such harm may affect the CPD’s ability to prevent and solve crimes. (See Def.’s Resp. to Pl.’s Facts ¶¶ 5, 7, 11; May 31, 2016 Office of Inspector General Mem., Ex. H to Def.’s Request for Judicial Notice, Dkt. No. 140-8; July 25, 2017 DOJ Press Release, Ex. R to Pl.’s Request for Judicial Notice, Dkt. No. 157-18.) As
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such, this Court finds that Chicago’s compliance with the Conditions would damage local law enforcement’s relationship with immigrant communities and decrease the cooperation essential to prevent and solve crimes both within those communities and Chicago at large. Trust once lost is not easily restored, and as such, this is an irreparable harm for which there is no adequate remedy at law. Cf. Gateway E. Ry. Co. v. Terminal R.R. Ass’n of St. Louis, 35 F.3d 1134, 1140 (7th Cir. 1994) (finding that loss of goodwill can qualify as an irreparable harm for which there is no adequate remedy at law). Beyond that, the Hobson’s choice that now confronts the City—whether to suffer this injury or else decline much-needed grant funds—is not a choice at all and is itself sufficient to establish irreparable harm. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (finding injunctive relief available where plaintiffs faced choice between continually violating state law and facing huge liability or violating the law once as a test case but suffering the injury of obeying the allegedly unconstitutional law during the pendency of review); see also City of Chicago v. Sessions, 264 F. Supp. 3d at 950. Additionally, a constitutional injury alone can constitute irreparable harm. See 11A Wright & Miller, Federal Practice & Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation of
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a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); see also Ezell v. City of Chicago, 651 F.3d 684, 698-700 (7th Cir. 2011); County of Santa Clara v. Trump, 250 F. Supp. 3d 497, 537 (N.D. Cal. 2017), appeal dismissed as moot, sub nom. City & County of San Francisco v. Trump, No. 17 16886, 2018 WL 1401847, at *1 (9th Cir. Jan. 4, 2018). Chicago faces such an injury here, where the Attorney General subjects the City’s receipt of grant funds to unconstitutionally imposed Conditions. For all of those reasons, Chicago demonstrates irreparable harm and lacks an adequate remedy at law.
The balance of hardships weighs in Chicago’s favor as well. As already explained, Chicago will suffer irreparable harm if the Attorney General’s imposition of the Conditions is not enjoined. If Chicago accepts the Byrne JAG funds and its Conditions, the City’s relationship with its immigrant communities will be degraded, making the City’s task of preventing and prosecuting crime more difficult. (Def.’s Resp. to Pl.’s Facts ¶¶ 5, 7, 11.) The picture is no brighter if Chicago declines the funds. If it does so, it will do so only to avoid the Conditions which the Attorney General has no authority or right to impose. Chicago intends to use the FY 2017 funds to expand its use of the
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ShotSpotter acoustic-surveillance technology into two communities plagued by high rates of gun violence. (Id. ¶ 15.) According to Chicago’s submissions, implementing this technology has a direct and positive effect on public safety. (See id.; Sach Decl. ¶ 15 (reciting that Chicago had 302 fewer shootings compared to the equivalent period in 2016 and that more than half of the reduction came from areas that recently deployed ShotSpotter).) But without the already-budgeted FY 2017 Byrne JAG funds, Chicago will not be able to expand its use of that technology as planned. (Sach Decl. ¶ 11.) Thus, the Conditions’ continued application causes Chicago hardship by unlawfully blocking it from funds it could otherwise accept without grievance.
On the other side of the scale, the Attorney General experiences little hardship from the imposition of this injunction. First, as the Seventh Circuit recognized, Chicago, “like other ‘welcoming’ or ‘sanctuary’ cities or states, does not interfere in any way with the federal government’s lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government. The federal government can and does freely operate in ‘sanctuary’ localities.” City of Chicago v. Sessions, 888 F.3d at 281 (citation omitted). True, the corresponding downturn in
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cooperation from local jurisdictions could, as the Attorney General fears, decrease the effectiveness of federal immigration enforcement. (See May 31, 2016 Office of Inspector General Mem., Ex. H to Def.’s Request for Judicial Notice, Dkt. No. 140-8; July 25, 2017 DOJ Press Release, Ex. R to Pl.’s Request for Judicial Notice, Dkt. No. 157-18.) Yet while the Attorney General would prefer to avoid that outcome, his present attempt to steer around it relies upon unlawfully imposing unauthorized grant Conditions. Though the Attorney General has many tools at his disposal to increase such local cooperation, conditioning the Byrne JAG grant as he has here is not one of them. The Attorney General thus suffers little hardship here because the injunction does not strip away any option he could otherwise exercise. In the end, the weight of the hardships rests with Chicago.
Finally, the public interest is served by issuing a permanent injunction. The Attorney General must administer the Byrne JAG grant program in conformance with the limited statutory authority Congress affords him. As explained at length, Congress provided the Attorney General no authority to impose the Conditions. The role of the judiciary to enjoin conduct by the executive that crosses its constitutionally-imposed limits is as essential to our form of government as it is well-established:
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The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. . . . It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.
City of Chicago v. Sessions, 888 F.3d at 277. By enjoining the
unlawful Conditions, the Court acts as a check on the executive’s
encroachment of congressional power and thus serves the public
interest by constraining the Attorney General’s authority in order
to preserve the Byrne JAG program as Congress envisioned. Cf.
Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)
(“[E]nforcement of an unconstitutional law is always contrary to
the public interest.” (citations omitted)).
In conclusion, Chicago has demonstrated all four requirements
for permanent injunctive relief: (1) Chicago’s harm is
irreparable; (2) such harm cannot be fully remedied by monetary
damages; (3) the balance of hardships favors Chicago; and (4) a
permanent injunction will not undermine the public interest. See
eBay, 547 U.S. at 391; accord City of Philadelphia v. Sessions,
No. 17-3894, 2018 WL 2725503, at *40-43 (E.D. Pa. June 6, 2018)
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(granting permanent injunctive relief in analogous factual circumstances); City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1100-01 (C.D. Cal. 2018) (same). Accordingly, the Court finds permanent injunctive relief warranted as to all three Conditions.
2. Scope of the Permanent Injunction The scope of the preliminary injunction is currently on appeal before the Seventh Circuit sitting en banc. This Court entered the preliminary injunction on September 15, 2017, enjoining the Attorney General from imposing Conditions nationwide. See City of Chicago v. Sessions, 264 F. Supp. 3d at 951-52. On appeal, the Seventh Circuit panel unanimously affirmed this Court’s ruling that the Attorney General lacks the statutory authority to impose the Conditions and a divided panel affirmed this Court’s corresponding issuance of a nationwide preliminary injunction. See City of Chicago v. Sessions, 888 F.3d at 293. The Attorney General petitioned for rehearing en banc solely as to the nationwide scope of the injunction, and the Seventh Circuit granted that request. See En Banc Order, City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128. While the en banc rehearing is pending, the Seventh Circuit stayed the nationwide scope of the preliminary injunction, thus limiting it,
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for now, to Chicago. See Order, City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 26, 2018), Dkt. No. 134. The eventual en banc ruling may well shed much-needed light on the proper scope of such injunctions, which is at present a matter of some debate. See City of Chicago v. Sessions, No. 17 C 5720, 2017 WL 4572208, at *4 (N.D. Ill. Oct. 13, 2017) (discussing the advantages and disadvantages of nationwide injunctions); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2425-29 (2018) (Thomas, J., concurring) (questioning the legality and historical underpinnings of universal or nationwide injunctions); id. at 2446 n.13 (Sotomayor, J., dissenting) (finding the district court did not abuse its discretion by granting nationwide relief); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 469 (2017) (arguing injunctions should only constrain defendant’s conduct against the plaintiff); Spencer E. Amdur and David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49 (2017) (responding to Bray’s criticisms of nationwide injunctions); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. (forthcoming 2018) (defending the use of nationwide injunctions); Getzel Berger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. Rev. 1068, 1100 (2017) (arguing injunctions against
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the federal government should extend only to the circuit where the district court sits).
And yet, though the en banc rehearing is pending, these district court proceedings do not freeze in place. When a preliminary injunction goes up on appeal, the district court retains the power to reach the merits of a case and, in fact, is duty-bound to do so. See 16 Wright & Miller, Federal Practice & Procedure § 3921.2 (3d ed.) (collecting cases and recognizing “cases involving injunctive relief are apt to present an urgent need for action”); Staffa v. Pollard, 597 F. App’x 893, 895 (7th Cir. 2015) (“[A]n appeal from an interlocutory decision—here, the denial of a preliminary injunction—does not divest a district court of jurisdiction or prevent the court ‘from finishing its work and rendering a final decision.’” (quoting Wis. Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006)) (citations omitted)); qad. Inc. v. ALN Assocs., Inc., 974 F.2d 834, 837 (7th Cir. 1992) (finding the district court “on solid legal ground” where it dissolved an injunction even while appeal of the injunction was pending). Federal Rule of Civil Procedure 62(c) specifically contemplates this circumstance and specifies that the trial court retains power to “suspend, modify, restore, or grant an injunction” during the pendency of the interlocutory appeal.
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FED. R. CIV. P. 62(c); see also State v. Trump, 263 F. Supp. 3d 1049, 1056 (D. Haw. 2017) (“Federal Rule of Civil Procedure 62(c) allows this Court to issue further orders with respect to an injunction it issued, notwithstanding appeal, in order to preserve the status quo or ensure compliance with its earlier orders.”), aff’d, 871 F.3d 646 (9th Cir. 2017). District courts routinely enter summary judgment and convert injunctions from preliminary to permanent while such appeals are pending. See, e.g., FTC v. Assail, Inc., 98 F. App’x 316, 317 (5th Cir. 2004) (“[I]t is settled that a district court has jurisdiction to proceed with the merits of the case and to grant a permanent injunction while an appeal of a preliminary injunction order is pending.” (citations omitted)); Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (same); cf. United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir. 1976) (recognizing that “an order granting or denying an interlocutory or preliminary injunction is merged in a decree or order granting or denying the permanent injunction, and that when both orders are appealed from, the appeal from the former will be dismissed”).
Even so, the weight of practice and respect for both judicial efficacy and higher authorities dictate that district courts should use such power only in a manner that preserves the status
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quo and thus the integrity of the appeal. See Aljabri v. Holder, 745 F.3d 816, 820 (7th Cir. 2014) (noting that a district court should not modify an order up on interlocutory appeal because to do so is “at best wasteful of resources and at worst chaotic”); Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 819-20 (5th Cir. 1989) (finding that district courts should not act in a way that could divest the court of appeals from jurisdiction during the pendency of an interlocutory appeal); Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962) (same); cf. N.W. Enters. Inc. v. City of Houston, 372 F.3d 333, 338 (5th Cir. 2004) (per curiam) (holding district court lacked jurisdiction to reverse injunctive relief already on appeal). Beyond this, the Court notes that there have been no intervening changes in facts or law since the preliminary injunction ruling that would shift this Court’s understanding of the original injunction’s propriety. A Seventh Circuit reversal en banc would, of course, be such a change, but until such a ruling comes down, this Court will not depart from its earlier analysis, which will preserve the status quo and the integrity of the pending appeal. As such, the Court now orders a permanent nationwide injunction as to all three Conditions, consistent with the Court’s earlier ruling enjoining
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the Attorney General from imposing the Notice and Access Conditions nationwide.
However, recognizing and deferring to the Seventh Circuit’s stay of the preliminary injunction as to all parts of the country beyond Chicago, this Court stays the nationwide scope of the permanent injunction in the same fashion. “Stays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). Courts use four factors to determine whether a stay is appropriate: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In weighing the factors, “a ‘sliding scale’ approach applies; the greater the moving party’s likelihood of success on the merits, the less heavily the balance of harms must weigh in its favor, and vice versa.” In re A & F Enters., 742 F.3d at 766.
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Here, those factors weigh in favor of staying the nationwide scope of the injunction. First, as illustrated above, the scope of the injunction involves novel issues upon which reasonable minds could differ, as evidenced by the disagreement between the majority and dissenting opinions in the Seventh Circuit’s now-vacated panel opinion. See City of Chicago v. Sessions, 888 F.3d at 288-300. And, while certainly not determinative, the fact that the court of appeals granted rehearing en banc and stayed the injunction in the first place makes Chicago’s nationwide-scope argument less auspicious than it had otherwise been. The first factor thus tilts the scales toward granting the stay, and the other factors do not reset the balance. The second and third factors weigh neutrally. The Attorney General faces no great harm absent a stay because he has no authority to impose the Conditions, and Chicago will not be directly affected by the stay. Finally, the fourth factor weighs in favor of granting the stay. The public interest will be best served by allowing the court of appeals time to issue its ruling. Noting that this complex issue is currently pending, prudence dictates waiting for guidance before effectuating such broad relief. Given the en banc stay already in place, mimicking that stay now will keep these scope issues streamlined and, if the en banc ruling were to overturn the panel’s affirmance, reduce the
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judicial whiplash to which Byrne JAG applicants nationwide will be subjected. In sum, the required elements for a stay of the nationwide scope of the permanent injunction are satisfied.
IV. CONCLUSION For the reasons stated herein, the Court grants the City of Chicago’s Motion for Summary Judgment on Counts I and II and correspondingly denies the Attorney General’s Motion to Dismiss Counts I, II, and IV. The Court enters and immediately stays permanent injunctive relief as detailed above. The remaining claims are dismissed as moot.
IT IS SO ORDERED.

Dated: 7/27/2018

Harry D. Leinenweber, Judge United States District Court

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 Case: 18-2885 Document: 118

Filed: 04/30/2020 Pages: 111

In the
United States Court of Appeals
For the Seventh Circuit
____________________ Nos. 18-2885 & 19-3290 CITY OF CHICAGO,
Plaintiff-Appellee,
v.
WILLIAM P. BARR, Attorney General of the United States,
Defendant-Appellant. ____________________
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
Nos. 1:17-cv-05720 & 1:18-cv-06859 — Harry D. Leinenweber, Judge.
____________________
NO. 18-2885 ARGUED APRIL 10, 2019, NO. 19-3290 SUBMITTED FEBRUARY 6, 2020
DECIDED APRIL 30, 2020 ____________________
Before BAUER, MANION, AND ROVNER, Circuit Judges. ROVNER, Circuit Judge. In this appeal from two consolidated cases, we consider for a second time the legality of

Case: 18-2885 Document: 118

Filed: 04/30/2020 Pages: 111

2

Nos. 18-2885 & 19-3290

conditions imposed by the Attorney General on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”). See 34 U.S.C. § 10151 et seq. (formerly 42 U.S.C. § 3750). Previously, the district court granted a preliminary injunction as to two conditions—known as the notice and access conditions—imposed by the Attorney General on the FY 2017 Byrne JAG grant applicants. We upheld the preliminary injunction and its nationwide scope in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (“Chicago I”).
The Attorney General then took the rare step of seeking en banc review limited to only the nationwide scope of the injunction, excluding the determination that injunctive relief was proper as to the notice and access conditions, and we granted en banc review. During the pendency of that review, the district court granted a permanent injunction, and in light of that superseding relief we vacated the decision granting en banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again determined that the notice and access conditions imposed by the Attorney General were unlawful and unconstitutional, but also determined that a third condition – the compliance condition – was unconstitutional as well. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court extended the injunction to apply to all FY 2017 grant recipients program-wide, but in light of our prior grant of en banc review regarding the scope of the injunction, stayed the injunction to the extent that it applied beyond the City of Chicago.
The Attorney General appealed that determination, and while it was pending in this court, the district court granted a permanent injunction in a second case brought by the City of

Case: 18-2885 Document: 118

Filed: 04/30/2020 Pages: 111

Nos. 18-2885 & 19-3290

3

Chicago, this time challenging the Attorney General’s imposition of conditions on the FY 2018 Byrne JAG grant. City of Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those conditions included the same notice, access, and compliance conditions that the district court enjoined as to the FY 2017 grant, as well as some new conditions. The district court enjoined the imposition of all of the challenged conditions as to the FY 2018 Byrne JAG grant and all future years, and once more stayed the injunction as to grantees other than the City of Chicago. Id. at 770. The Attorney General again appealed to this court, and we consolidated the two cases for the purposes of the appeal.
The stakes in this case are high. Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted by Congress to support the needs of local law enforcement to help fight crime, yet it now is being used as a hammer to further a completely different policy of the executive branch—presenting a city such as Chicago with the stark choice of forfeiting the funds or undermining its own law enforcement effectiveness by damaging that cooperative relationship with its residents.
The Attorney General repeatedly expresses frustration that Chicago, or any other jurisdiction, can “simultaneously accept federal law enforcement grants, yet maintain local policies that frustrate federal immigration enforcement.” Appellant’s Brief 1-3-20 at 1. It is a sentiment echoed by the only

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circuit—of the five that have considered it—to uphold the challenged conditions thus far. See State of New York v. Dept. of Justice, 951 F.3d 84, 107 (2d Cir. 2020) (“there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws.”) But states do not forfeit all autonomy over their own police power merely by accepting federal grants. And the Attorney General’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch. The executive branch has significant powers over immigration matters; the power of the purse is not one of them. This tendency to overlook the formalities of the separation of powers to address the issueof-the-day has been seen many times by the courts, and it is no more persuasive now than it was in those cases. As the Supreme Court has stated, repeatedly:
Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

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Printz v. United States, 521 U.S. 898, 933 (1997), quoting New York v. United States, 505 U.S. 144, 187 (1992).
We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.
I. Facts and District Court Rulings
In Chicago I, we discussed at length the Byrne JAG program and Chicago’s Welcoming Ordinance, as well as their respective purposes. See Chicago I, 888 F.3d at 276–82. In short, the Byrne JAG grants are awarded annually to address the needs of state and local law enforcement. They are the primary source of federal criminal justice enforcement funding for state and local governments. This lawsuit stemmed initially from the Attorney General’s decision to attach three conditions to those grants – the notice, access and compliance conditions, which as set forth by the district court provide respectively:
(1) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the

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scheduled release date and time for a particular alien in such facility, then such facility will honor such request and—as early as practicable—provide the requested notice to DHS.
(2) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given [] access [to] any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.
(3) The applicant local government must submit the required ‘Certification of Compliance with 8 U.S.C. § 1373’ (executed by the chief legal officer of the local government).
City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937–38 (N.D. Ill. 2017). In short:
 the notice condition requires that state or local officials honor requests to provide federal agents advance notice of the scheduled release date and time for aliens in custody;
 the access condition requires state or local correctional facilities to give federal agents access to aliens in their custody;

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 and the compliance condition requires the state or local governments to certify their compliance with 8 U.S.C. § 1373 (hereinafter “§ 1373”), which prohibits state and local governments from restricting their own officials from communicating information regarding the citizenship or immigration status of any individual to the Immigration and Naturalization Service.1
All of those conditions were imposed on applicants for the FY 2018 Byrne JAG grant as well, but three new conditions were added. The first was virtually identical to the compliance condition, except that it referenced 8 U.S.C. § 1644 (hereinafter § 1644) rather than 8 U.S.C. § 1373 which contains essentially the same language:
 the § 1644 compliance condition requires certification that the “program or activity” funded under the Byrne JAG award complies with § 1644, which provides “[n]otwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the

1 The Homeland Security Act of 2002 completely dismantled the Immigration and Naturalization Service and created a new cabinet level agency— the Department of Homeland Security—under which Immigration and Customs Enforcement (ICE) now operates. See Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135.

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immigration status, lawful or unlawful, of an alien in the United States.”
The Attorney General concedes that the two compliance conditions are equivalent and that our disposition as to one will control as to the other.
The Attorney General imposed two additional conditions on the FY 2018 Byrne JAG grant that were distinct from those imposed on the FY 2017 grant, which have been termed the “harboring” condition and the “additional certification” condition:
 The harboring condition prohibits the recipient jurisdiction from making any “public disclosure … of any federal law enforcement information in a direct or 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 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 U.S.C. 1324(a).”
 The additional certification condition requires the certification that “neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect … any law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded … that would or does—(a) impede the exercise by federal officers of authority under 8 U.S.C.

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§ 1357(a); or (b) impede the exercise by federal officers of 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).”
Chicago, 405 F. Supp. 3d at 754–55.
Those conditions conflict with the Welcoming City Ordinance, which reflects Chicago’s determination that the cooperation of all persons, whether documented or undocumented, “’is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems.’” Chicago I, 888 F.3d at 279 (quoting Chicago Municipal Code, Welcoming City Ordinance (the “Ordinance”), § 2-173-005 “Purpose and Intent”). Toward that end, the Ordinance sets forth standards which include prohibitions on requesting or disclosing information as to immigrant status, as well as a prohibition on detaining persons solely based on a belief as to their immigration status or on immigration detainers based solely on violations of civil immigration laws. Chicago I, 888 F.3d at 279; Ordinance, § 2-173-020, -030, -042. The Ordinance further provides that “unless acting pursuant to law enforcement purposes unrelated to the enforcement of civil immigration law, no agency or agent shall permit Immigration and Customs Enforcement (ICE) agents access to a person being detained or permit the use of agency facilities for investigative interviews, nor can an agency or agent while on duty expend time responding to ICE inquiries or communicating with ICE as to a person’s custody status or release date.” Chicago I, 888 F.3d at 279; Ordinance § 2-173-042. Those restrictions in the Ordinance are inapplicable when the subject of the investigation “has an outstanding criminal warrant, … has been convicted of a felony, … is a defendant … where … a felony

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charge is pending, … or has been identified as a known gang member either in a law enforcement agency’s database or by his or her own admission.” Ordinance, § 2-173-042(c); Chicago I, 888 F.3d at 279–80.
A. Challenge to FY 2017 grant
In the first of the two cases before us, Chicago challenges the conditions imposed on the FY 2017 grant, alleging: that the conditions were unconstitutional because the Byrne JAG statute does not provide the Attorney General with the statutory authority to impose the conditions, and that the imposition is therefore ultra vires and a violation of the separation of powers; that the conditions violate the Spending Clause of the Constitution; and that, independent of the Byrne JAG grant, § 1373 is an impermissible federal conscription of state power and is unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Chicago also sought a declaratory judgment providing that even if § 1373 is constitutional, Chicago is in compliance with it. Finally, Chicago alleged that the imposition of the conditions was arbitrary and capricious in violation of the Administrative Procedures Act and violated the Paperwork Reduction Act.
The Attorney General sought dismissal of the complaint in its entirety, arguing that the complaint was insufficient to state a claim and that the court lacked subject matter jurisdiction. As to subject matter jurisdiction, the Attorney General asserted that the Department of Justice had not yet consummated any final agency action that was ripe for judicial review because it had not reached a final decision as to whether to award Chicago funds under the Byrne JAG grant. Chicago responded that its challenge was not to the Attorney General’s pending decision as to whether to award

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the grant funds, but rather to the decision to attach the conditions to the grant in the first instance. The district court agreed with Chicago as to the nature of the challenge, noting that the complaint requested that the court “[d]eclare that all three immigration-related conditions for the FY 2017 Byrne JAG are unlawful.” City of Chicago, 321 F. Supp. 3d at 865. The court noted that in order for an agency action to be final, two criteria must be satisfied: it must mark the consummation of the agency’s decision-making process and not merely a tentative or interlocutory decision; and it must be one by which rights or obligations of the challenging party have been determined or from which legal consequences will flow. Id. at 865 (citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The court held that the action was not merely tentative or interlocutory, because the Attorney General stated in his declaration that every FY 2017 award would include conditions identical to the ones in the grant already awarded, which included all of the challenged conditions. Id. at 865. In addition, the court noted that the FY 2017 grants were awarded based on a solicitation that clearly imposed the challenged conditions. Id. The court held that the second criteria was met as well, because the conditions force Chicago to choose between accepting the award with those conditions, or forgoing the grant and the corresponding law enforcement benefit in favor of maintaining the policies that it believed would maximize law enforcement goals. Id. at 866.
Chicago moved for partial summary judgment as to three counts, arguing that the Attorney General acted ultra vires in imposing the conditions, and in violation of the separation of powers, and contending that even if the compliance condition was valid, Chicago was not in violation of § 1373. The district court granted the motion and determined that § 1373 was

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facially unconstitutional under the Tenth Amendment’s anticommandeering principle, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and that the Attorney General violated the principle of the separation of powers in attaching conditions to the FY 2017 Byrne JAG grant. The court enjoined the imposition of the three conditions program-wide, but stayed the injunction beyond the City of Chicago pending the appeal. Id. at 882. The Attorney General now appeals that decision as to all three of the conditions.
B. Challenge to FY 2018 grant
In the second of the two cases consolidated in this appeal, Chicago raises identical challenges to the notice, access and compliance conditions, and also challenges the harboring condition and the additional certification requirement.2 The district court held that the notice, access, and compliance conditions were materially identical to the conditions it had already enjoined in the case challenging the FY 2017 grant conditions, and that the new compliance condition referencing § 1644 was indistinguishable from the § 1373 compliance condition and therefore unlawful under the same reasoning. As to the additional certification requirement, the court first recognized that the Executive possesses no inherent authority to impose conditions on the payment of federal funds

2 Although one additional claim was dismissed without prejudice, the City of Chicago has informed the court that it disavows any right to further pursue that claim in this action, and therefore the judgment is reviewable under § 1291. See West v. Louisville Gas & Elec. Co., 920 F.3d 499, 506 (7th Cir. 2019).

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authorized by the Legislature, and that the Attorney General had failed to identify any source of authority as to the imposition of the additional certification requirement. The district court nevertheless proceeded to analyze whether any statutory basis for the Attorney General’s authority was apparent.
The court first noted that the Byrne JAG statute itself provided no such authority, and in fact strictly delineated the formula for the distribution of grant funds. The court then noted that it had already held, with respect to the notice and access conditions, that § 10102(a)(6) did not provide such authority. The court further held that the statutes enumerated in the additional certification requirement applied only to the federal government and did not require cities or localities to do anything, and therefore the Attorney General could not require compliance with those statutes as an “applicable federal law” under § 10153(A)(5)(D). Finally, the court addressed the harboring condition. After again noting that § 10102(a)(6) cannot provide a source of such authority, the court considered the Attorney General’s argument that 34 U.S.C. §§ 10102(a)(2) and (4) authorize the imposition of the harboring condition. Those sections require the Assistant Attorney General to maintain liaison with the executive and judicial branches of the federal and state governments, public and private educational and research institutions, state and local governments, and governments of other nations, relating to criminal justice. The district court held that §§ 10102(a)(2) and (4) contain no delegation of authority to place a harboring condition on Byrne JAG grantees, but rather are more plausibly read as an instruction that the Assistant Attorney General maintain bilateral communications with state and local governments.

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II. Analysis—Overview
As we discussed in Chicago I, this appeal is not about optimal federal or state immigration policies. That is not for the court to discuss or decide. Rather, the issues before us today concern the spheres of power that reside in the state rather than in the federal government, and the critical balance of power between the executive, legislative, and judicial branches of the federal government. Chicago, in deciding that its law enforcement needs would be better met if its undocumented residents could report crimes and communicate with its police force without fear of immigration consequences, is exercising its police power—an area of power long recognized as resting with the states. The Attorney General now seeks to pursue the federal government’s interest in enforcing its immigration laws. Regulating immigration into this country is a legitimate federal interest, and the executive branch including the Attorney General has authority to enforce the nation’s immigration laws. But the methods the executive employs in pursuit of those legitimate ends must be lawful and, in this case, the means the Attorney General has chosen are not lawful. The federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government.
The Attorney General’s use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of another core value, which is the separation of powers among the branches of the federal government. The authority to pass laws and the power of the purse rest in the legislative not the executive branch. The composition of the legislature—with elected

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representatives and dual chambers—provides institutional protection from the abuse of such power. But no such institutional protection from abuse exists should such power be concentrated in the executive branch, where one individual—whether the President or the Attorney General or another official—determined to impose his or her policy preferences regardless of the will of Congress, could proceed unimpeded by the types of institutional checks present in the legislative body. Such a concentration of power would allow tyranny to flourish, and our system of government is wisely set up by the Founders to foreclose such a danger. The executive branch has significant powers of its own— particularly in matters such as immigration—but the power to wield the purse to alter behavior rests squarely with the legislative branch. Congress has thus far refused to pass legislation that would do precisely what the Attorney General seeks to do here. “Respecting the separation of powers forecloses no substantive outcomes. It only requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution.” Gundy v. United States, 139 S. Ct. 2116, 2145 (2019)(Gorsuch, J., dissenting).
Article I of the Constitution vests the power to legislate with Congress, not the Executive. Id. at 2123. Therefore, “when Congress confers decisionmaking authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’” (emphasis in original) Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

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III. Notice, Access, Harboring and Additional Certification Conditions
For his authority to impose the conditions, the Attorney General points to 34 U.S.C. § 10102, which sets forth the duties and functions of the Assistant Attorney General as follows:
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the conditions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
(3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice;
(4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and
(6) exercise such other powers and functions as may be vested in the Assistant Attorney General

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pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
34 U.S.C. § 10102.
The Attorney General argues that §§ 10102(a)(2), (4), and (6) provide authority for him to impose the substantive conditions on the Byrne JAG grant. Specifically, he points to § 10102(a)(6) as allowing virtually unlimited authority to place conditions on grants and therefore allowing the imposition of the notice, access, harboring and additional certification conditions. He further points to the provisions in §§ 10102(a)(2) and (4) empowering the Assistant Attorney General to “maintain liaison” as further authority for the harboring condition.
A. Section 10102(a)(6)
We turn first to the notice and access conditions, which we previously addressed in the appeal from the grant of a preliminary injunction. Chicago I, 888 F.3d 272. The district court imposed a preliminary injunction as to those notice and access conditions, and in Chicago I we upheld that preliminary injunction. The standard for preliminary injunctive relief requires only a showing of a likelihood of success on the merits, whereas permanent relief requires a determination on the merits. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546 n.12 (1987). As to the challenge to the notice and access conditions, however, this is a distinction without a difference.
Our reasoning in Chicago I established Chicago’s entitlement to relief on the merits, not merely a likelihood of success. The Attorney General relied on 34 U.S.C. § 10102(a)(6) as

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providing the statutory authority to impose both of those conditions.
Subsection (a)(6) provides that the Assistant Attorney General shall “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” § 10102(a)(6) (emphasis added). During the first appeal, we held that the plain meaning of that language was to delineate the subcategory of powers and functions that the Assistant Attorney General could exercise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General. Chicago I, 888 F.3d at 285; accord New York, 951 F.3d at 102, City of Philadelphia v. Atty. Gen. of United States, 916 F.3d 276, 287 (3d Cir. 2019), City & Cnty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 943 n.4 (N.D. Cal. 2019). The “inescapable problem” with the Attorney General’s interpretation, however, was that he did not even claim that the power exercised here was authorized anywhere in the chapter, nor could he claim that the Attorney General possesses that authority and could delegate it to the Assistant Attorney General. Chicago I, 888 F.3d at 285. And the plain language of § 10102(a)(6) precludes an interpretation that it is a standalone grant of power unrelated to the authority granted in the chapter or the authority granted to the Attorney General. Id.
We further noted that our plain reading of the statute was consistent with the structure of § 10102 and the Byrne JAG program itself. Id. at 285–86. In contrast to discretionary grants, the Byrne JAG program was a formula grant program, with strictly-circumscribed provisions allocating award

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amounts and penalties. An interpretation of § 10102(a)(6) that would authorize the wholesale denial of all grant funds would be a radical departure from the otherwise carefully-delineated rules for the awarding and the withholding of funds, and one would expect such a significant power to be unmistakable in its language and to be connected to the Byrne JAG (or grant awards in general) by reference. We noted that
‘[a] clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General. … As the Supreme Court has repeatedly held, ‘Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.’
Id. at 285–87, quoting Gonzales v. Oregon, 546 U.S. 243, 267 (2006); Philadelphia, 916 F.3d at 288. We will not repeat that analysis here, but it applies equally in the context of a permanent injunction. No new meritorious arguments have been raised by the Attorney General as to those conditions in this appeal. Accordingly, we adopt and incorporate the reasoning from Section III of that opinion in this appeal. Chicago I, 888 F.3d at 282–87. For the reasons stated in Chicago I, the district court did not err in granting permanent injunctive relief as to the notice and access conditions. The Attorney General relies on § 10102(a)(6) as the authority to impose the additional

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certification and harboring conditions as well, and our rejection of that argument in Chicago I forecloses the argument as to those conditions as well.3
B. Sections 10102(a)(2) and (4)
The Attorney General attempts to salvage the harboring condition by pointing to a different portion of § 10102—the subsections that instruct the Assistant Attorney General to maintain liaisons with other entities—in (a)(2), “with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice,” and in (a)(4) “with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice.” That language entrusts the Assistant Attorney General with maintaining lines of communication with other entities, and is sandwiched between a recitation of other relatively-ministerial duties of the Assistant Attorney General including the power to: “publish and disseminate information on the conditions and progress of the criminal justice systems [in (a)(1)], … provide

3 In the course of his argument that § 10102(a)(6) authorizes the imposition of the additional certification condition, the Attorney General also states in a parenthetical that the additional certification condition “also involves the provision of programmatic information to the extent that any active impeding takes the form of withholding information, see 34 U.S.C. § 10153(A)(4).” Appellant Brief, No. 19-3290, at 22; see also City of Providence v. Barr, 2020 WL 1429579 at *7 (1st Cir. March 24, 2020) (rejecting the argument that the “programmatic information” language in § 10153(A)(4) provided authority for the conditions). That is the sole reference to § 10153(A)(4) as a basis to support the imposition of the additional certification condition, and is insufficient to raise the argument before this court. See Sauk Prairie Conservation All. v. United States Dep't of the Interior, 944 F.3d 664, 674 (7th Cir. 2019).

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information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice [in (a)(3),] … [and] coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention [in (a)(5)].” 34 U.S.C. §§ 10102(a)(1), (3), (5); Chicago I, 888 F.3d at 287.
Nothing in that language even references, let alone authorizes, the Assistant Attorney General to impose conditions on the distribution of funds authorized by Congress. See State of Oregon v. Trump, 406 F. Supp. 3d 940, 969 (2019) (holding that the definition of liaison does not even hint at a punitive aspect, “let alone a discretionary authority to completely dissolve relations when one side does not abide by the wishes of the other,” and that the structure of the statute also weighs against the Attorney General’s interpretation); San Francisco, 372 F. Supp. 3d at 944 (noting that “[t]he structure of Section 10102 does not support the contention that ‘maintain liaison’ in Section 10102(a)(2) provides more than a ministerial duty on the Attorney General to maintain communication with other Federal and State agencies.”). It would strain statutory interpretation to the breaking point to interpret a provision that requires the fostering of communication as handing to the Assistant Attorney General the power to withhold the entire Byrne JAG award for the failure to comply with substantive conditions imposed by the Attorney General – particularly given that the language in the Byrne JAG grant sets forth highly detailed and precise circumstances that would justify the withholding of funds and the percentages that can be withheld. See Chicago I, 888 F.3d at 286–87.

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Moreover, the language in subsections (a)(2) and (4) could not support the harboring condition even if we were to ignore the problem that the language itself does not authorize the imposition of conditions. Both subsections address the power to maintain liaisons relating to criminal justice matters. But the harboring condition that the Attorney General seeks to impose on the Byrne JAG grant is explicitly not targeted to criminal matters. The harboring condition prohibits the recipient jurisdiction from making any “public disclosure … of any federal law enforcement information in a direct or 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 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 [federal criminal law provisions] 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).” (emphasis added) Chicago, 405 F. Supp. 3d at 754–55. Thus, it would withhold funds even regarding disclosures that related only to civil immigration and not the more narrow category of criminal immigration matters. And it is being used by the Attorney General to target Chicago’s Welcoming City Ordinance, which explicitly allows the City to cooperate in criminal, as opposed to civil, immigration matters. The Attorney General cannot rely on a provision encouraging communications as to criminal justice matters as authority to deny funds for disclosures related only to civil matters. See San Francisco, 372 F. Supp. 3d at 945 (holding that the scope of the harboring condition exceeds the ministerial duty to maintain liaison). For that reason as well, §§ 10102(a)(2) and (4) do not provide authority for the harboring condition.

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IV. Compliance Condition
We turn, then, to the compliance condition, which requires the state or local government to certify that it will not restrict its own officials from communicating information regarding the citizenship or immigration status of any individual. The burden of that requirement is not insignificant. For instance, in City & Cnty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 952 (N.D. Cal. 2018), considering only detainer requests, the district court noted that “California’s law enforcement agencies experienced double the detainer requests from ICE in one year—from 15,000 in fiscal year 2016 to 30,000 in fiscal year 2017.” Under the Attorney General’s compliance condition, a state or local government could not instruct its own employees that they must devote their time to law enforcement tasks that it deems a higher priority rather than respond to those information requests from ICE.
The compliance condition was not before this court in the prior appeal. The district court had denied preliminary relief as to that condition and Chicago did not cross-appeal that issue to this court. At the permanent injunction stage, however, the court reversed course and granted injunctive relief as to that condition as well based on the Supreme Court’s decision in Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018), which had been issued in the interim.
A. District Court Analysis
In the “Overview of Legal Requirements Generally Applicable to OJP [Office of Justice Programs] Grants and Cooperative Agreements - FY 2017 Awards,” (hereinafter “Overview of Legal Requirements”), the Attorney General declared that he was imposing the compliance condition “[c]onsistent with

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OJP’s statutory authority to impose grant conditions, including 42 U.S.C. 3712 [now found at 34 U.S.C. § 10102].” See Dist. Ct. R. 26, Exh. M. As with the notice and access conditions, the Attorney General points to § 10102(a)(6) as authorizing the Assistant Attorney General to place special conditions on all grants and determine priority purposes for formula grants. We rejected that interpretation in Chicago I as to the notice and access provisions, and we have adopted that rationale in this appeal as well. The Attorney General’s reliance on § 10102(a)(6) fails for the same reason when applied to the compliance condition.
Despite his declaration that the grant condition would be imposed pursuant to his power under § 10102, in the district court and on appeal the Attorney General primarily anchors the compliance condition to 34 U.S.C. § 10153(A)(5)(D) (hereinafter “§ 10153”). That provision states that in a request for a grant, the application “shall include … [a] certification, made in a form acceptable to the Attorney General … that … the applicant will comply with all provisions of this part and all other applicable Federal laws.” (emphasis added) The Attorney General argues that the italicized portion allows him to require that applicants certify compliance with 8 U.S.C. § 1373.
Section 1373 provides:
(a) In general
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service

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information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
Under the Attorney General’s reasoning, Congress itself incorporated § 1373 into the Byrne JAG program by requiring compliance with “all other applicable federal laws.” And the

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Attorney General interprets the requirements of § 1373 incredibly broadly, maintaining that the information as to “citizenship or immigration status” incorporates information beyond an individual’s immigration status, including, for instance, an alien prisoner’s release date.
The district court interpreted the term “all other applicable federal laws” as encompassing all federal law. City of Chicago, 321 F. Supp. 3d at 875. The court held that if Congress wanted to limit the term to include just a specific body of federal grant-making laws, it could have done so, but that the language “all other applicable federal law” includes any federal law that applies to Chicago. Id. Because § 1373 is a federal law, the court held that § 10153 would require applicants to certify compliance with it. Id.
But the district court then considered whether § 1373 was itself constitutional, reasoning that an unconstitutional law could not constitute an “applicable law” under § 10153. The court held that § 1373 violated the anticommandeering doctrine of the Tenth Amendment in light of the Supreme Court’s decision in Murphy, 138 S. Ct. 1461. City of Chicago, 321 F. Supp. 3d at 866–73, 875. In Murphy, the Court made clear that regardless of whether a federal law commands state action or precludes it, Congress cannot issue direct orders to state legislatures. Murphy, 138 S. Ct. at 1478. Accordingly, the language in § 1373 could be problematic under the Tenth Amendment even if it merely operated to preclude the state from taking certain actions. The district court then considered the language of § 1373, which bars any government entity or official from prohibiting, or in any way restricting, any other government entity or official from exchanging information with federal immigration authorities, and also prohibits any

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person or agency from doing the same. The court held that Chicago had challenged § 1373 as an independent statute, and concluded that it was unconstitutional under the anticommandeering doctrine of the Tenth Amendment. City of Chicago, 321 F. Supp. 3d at 867, 869. The court noted that a state’s ability to control its offices and employees is at the heart of state sovereignty and that § 1373 violates that in a number of ways: first, it supplants local control of officers, precluding Chicago and other localities from limiting the amount of paid time its employees use to communicate with federal immigration authorities; second, it indirectly constrains local rule-making by precluding local lawmakers from passing laws that implement the localities’ preferred policies, such as the Welcoming City Ordinance, which run counter to § 1373—a concern squarely addressed in Murphy; third, it redistributes local decision-making power by transferring that power from local policymakers to line-level employees who are empowered to decide for themselves whether or not to communicate with immigration authorities; and finally, because it eliminates the ability of a locality such as Chicago to control its employees’ communications with federal immigration authorities, § 1373 prevents that locality from extricating itself from federal immigration enforcement, thus foreclosing the “critical alternative” recognized in New York v. United States, 505 U.S. 144, 177 (1992), of the option of non-participation in a federal program. City of Chicago, 321 F. Supp. 3d at 869–70. The court concluded that § 1373 was unconstitutional on its face and, as an unconstitutional law, it could not be considered an “applicable federal law” for purposes of § 10153. Id. at 875–76. It rejected the Attorney General’s baseless argument that even an unconstitutional

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law could be considered an “applicable federal law” under § 10153.
B. Section 10153
The Attorney General challenges those conclusions on appeal, but we need not address the district court’s compelling analysis of that Tenth Amendment issue, because we hold that the term “all other applicable federal law” cannot be construed so broadly as to encompass § 1373. Pearson v. Callahan, 555 U.S. 223, 241 (2009) (noting the court’s long-time practice of “constitutional avoidance,” where courts do not pass on questions of constitutionality unless such adjudication is unavoidable). Our analysis begins with the plain language of § 10153, interpreted not in a vacuum, but in light of the context and the statutory structure as a whole. Gundy, 139 S. Ct. at 2126; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18–19 (1981). Proper interpretation considers not only the specific context in which the language is used, but the overall structure of the statute as a whole, as well as its history and purpose. Gundy, 139 S. Ct at 2126.
1. Plain Language
The Attorney General argues that the term “all other applicable federal law” incorporates all federal law that applies to states or localities. The immediate problem with that interpretation is that it renders the words “other applicable” superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (“[i]t is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’”); Philadelphia, 916 F.3d at 289 (“the

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canon against surplusage counsels us to read the term ‘applicable’ in a way that gives it some independent heft.”) If Congress meant to incorporate all law that applies to States or localities, that would be accomplished by requiring compliance with “all federal law.” Any federal laws that did not apply to states or localities would simply be irrelevant in considering compliance, in that an entity could not fail to comply with a law that does not impose any legal obligations on it, and therefore the term would not be overinclusive. By including only “applicable” federal laws, the provision encompasses only laws that apply by their terms to the award itself.
The natural reading of the phrase considers the language in the subsection as a whole:
(A) To request a grant … the … State or unit of local government shall submit an application to the Attorney General … in such form as the Attorney General may require. Such application shall include the following:
…
(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, if qualified under regulations promulgated by the Attorney General), that—
(A) the programs to be funded by the grant meet all the requirements of this part;
(B) all the information contained in the application is correct;

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(C) there has been appropriate coordination with affected agencies; and
(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
34 U.S.C. § 10153(A)(5). This provision relates to the grant application itself and conformance to all of its requirements. It provides for an assurance that the programs to be funded by the grant meet all the requirements, that the information in the grant application is correct, that appropriate coordination with agencies affected by the grant has occurred, and that the applicant will comply with all provisions of this part and “all other applicable Federal laws.” The most natural reading of the last provision is that “all other applicable” laws refers to the many federal laws that apply specifically to grants or grantees. That is consistent with the structure of the provision as a whole which addresses requirements related to the grant and the application for the grant itself. See City of Providence v. Barr, 2020 WL 1429579 at *11 (1st Cir. March 24, 2020); Philadelphia, 916 F.3d at 289 (noting that those four subsections all relate to the programs that will be funded under the grant, thus counseling against a broader interpretation of the applicable laws clause); San Francisco, 349 F. Supp. 3d at 954 (noting that all of the conditions preceding it apply to the grant itself). This reading also tracks more closely to the language of § 10153(A)(5)(D) itself, which requires certification that the “applicant” will comply with all provisions of this part and all other applicable federal laws, thus signaling that the requirement is tethered to the status of the state and locality as a grant applicant and not merely as a governmental entity.

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2. Consistency with Other Statutes Applied
The language at issue is mirrored in a subsequent subchapter that also applies on its terms to the Byrne JAG program, and provides:
Whenever, after reasonable notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, the Bureau of Justice Assistance, the National Institute of Justice, and the Bureau of Justice Statistics finds that a recipient of assistance under this chapter has failed to comply substantially with—
(1) any provisions of this chapter;
(2) any regulations or guidelines promulgated under this chapter; or
(3) any application submitted in accordance with the provisions of this chapter, or the provisions of any other applicable Federal Act;
the Director involved shall, until satisfied that there is no longer any such failure to comply, terminate payments to the recipient under this chapter, reduce payments to the recipient under this chapter by an amount equal to the amount of such payments which were not expended in accordance with this chapter, or limit the availability of payments under this chapter to programs, projects, or activities not affected by such failure to comply.
(emphasis added) 34 U.S.C. § 10222. Again, the statute speaks in terms of the “recipient of assistance under this chapter”

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complying with “the provisions of any other applicable Federal law,” thus signaling that the laws that would be “applicable” are laws that refer specifically to grant recipients, not any laws that apply generally to states or localities. The reference to “other” applicable Federal law is a nod to the requirements that precede it, which all relate to the grant itself and regulations relating to it. Specifically, preceding the “all other applicable Federal law” provision are the requirements that the recipient of assistance comply substantially with provisions of that chapter, regulations or guidelines promulgated under that chapter, and applications submitted in accordance with the provisions of this chapter. All of those requirements directly relate to the requirements specific to the subject matter of the grants. The most natural reading of the phrase “all other applicable Federal law,” then, is that it includes laws relating to grant recipients that appear outside this specific chapter of the United States Code.
And that is true of the same language in § 10153(A)(5)(D) as well. Because many federal laws explicitly apply to federal grantees, the most natural reading of § 10153 as a whole is that it requires the applicant to certify that it will comply with all of those federal laws that apply, by their terms, to successful grant applicants. That is consistent with the other listed provisions in § 10153(A)(5) which relate to the grant itself—either in assuring that it is awarded based on correct information, or that it is pursued in proper coordination with affected agencies, or, in the part at issue here, that it will be in compliance with all the grant requirements in this part or other parts of federal law. It is also reflected in the OJP’s own explanation of grant requirements as set forth in its Overview of Legal Requirements, which explains that “[e]ach recipient of an OJP grant or cooperative agreements must comply with all

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federal statutes and regulations applicable to the award, as well as the particular award conditions included in the award document.” (emphasis added) Dist. Ct. R. 26, Exh. M.; see also id. (providing applicant an overview of statutes and award conditions “that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in 2017”) (emphasis added). As that language makes clear, the connection of the law to the award itself is what renders a particular federal law “applicable.”4
Such statutes directly applying to grants and grant recipients are plentiful, and the Byrne JAG program explicitly identifies a number of them in its application. In fact, a review of the other federal laws referenced in the application reveals a clear pattern of laws that explicitly apply to those receiving federal funds. The Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation directs applicants to the web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative agreements – FY 2017 Awards” for a general overview of the important statutes and regulations that apply to the

4 The Attorney General argues that some federal laws and regulations include language modifying “applicable,” and that absent such language the term should be interpreted as unbounded (citing 42 U.S.C. § 16154(g)(1) (“generally applicable Federal laws and regulations governing awards of financial assistance, contracts, or other agreements”) and Pub. L. No. 113-121, § 1043 (a)(3)(C)(ii)(II), 128 Stat. 1193, 1246 (2014) (“all applicable Federal laws (including regulations) relating to the use of the funds”)). It is not at all clear that such language serves to narrow rather than to clarify, but regardless, the use of modifying language in other statutes does not alter our conclusion that the context, language and structure of this statute defines the phrase as including only laws relating to grants and grantees.

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grant. Appellant’s Appendix, No. 18-2885, at A175. That source identifies a number of federal laws that apply to the grant, and those laws are identified in the grant award itself as well. See id. at A50–A69. Unlike § 1373, however, those laws by their very language apply expressly to grants and recipients of grants. For instance, the laws include:
18 U.S.C. § 1913—Lobbying with appropriated moneys, which provides that “[n]o part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, [etc.] … intended or designed to influence in any manner a Member of Congress … .“
22 U.S.C. § 7104—Prevention of trafficking, which in § 1704(g) provides that “the President shall ensure that any grant … provided or entered into by a Federal department or agency under which funds are to be provided to a private entity, in whole or in part, shall include a condition that authorizes the department or agency to terminate the grant … if the grantee or any subgrantee … engages in … (1) severe forms of trafficking in persons … .”
41 U.S.C. § 4712(a)(1)—Enhancement of contractor protection from reprisal for disclosure of certain information, providing that “[a]n employee of a … grantee, or subgrantee … may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2)

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information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant … .”
28 C.F.R. § 54.100—Title IX regulation “designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution … .”
28 C.F.R. § 42.102-42.105—Title VI of the Civil Rights Act—prohibits discrimination on the ground of race, color, or national origin and “applies to any program for which Federal assistance is authorized under a law administered by the Department,” with Federal financial assistance defined as including “grants and loans of Federal funds.” It also requires that “[e]very application for Federal financial assistance to which this subpart applies … shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this subpart.”
31 U.S.C. § 1352—Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions, providing that “[n]one of the funds appropriated by any

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Act may be expended by the recipient of a Federal … grant … to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with [federal contracts].”
(emphasis added). Those statutes and regulations also provide specific remedies tailored to each provision for violations—ranging from civil penalties to abatement measures to grant termination—in contrast to §1373 for which the Attorney General himself has determined that wholesale withholding of the entire grant is the remedy for noncompliance. See, e.g., 31 U.S.C. § 1352(a)–(c) incorporated by reference in 18 U.S.C. § 1913, 22 U.S.C. § 7104(g), 41 U.S.C. § 4712(c). Section 1373, therefore, represents a departure from the other federal law incorporated into the grant. In fact, the Third Circuit in Philadelphia, 916 F.3d at 290, considered the history as to which laws the Justice Department included under the applicable laws clause, and noted that “[e]very condition that is authorized by the Applicable Laws Clause applies specifically to programs funded under the grant, not more generally to the grantee.”
C. Problems with AG’s Interpretation
The Attorney General’s interpretation of the compliance provision, in contrast, would expand that provision far beyond the context of the grant and its application, to encompass the broad, unrelated array of federal laws that apply to states or local governments regardless of their connection to this or any grant. Moreover, as we will explain, the Attorney General’s interpretation would: (1) allow the executive to

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impose conditions that Congress repeatedly declined to institute itself; (2) allow the Attorney General in his discretion to impose a substantive qualifying condition on a grant that Congress explicitly established as a formula rather than a discretionary grant; (3) render irrelevant or illogical other provisions in the Byrne JAG statute and raise constitutional concerns; and (4) conflict with another statutory provision. As such, it is inconsistent with the bedrock principles of separation of powers and federalism, and the district court properly granted injunctive and declaratory relief.
1.
Although the Attorney General interprets § 10153 as requiring compliance with § 1373, Congress has repeatedly refused to pass legislation that would do precisely that, as we recognized in Chicago I:
In the past few years, numerous pieces of legislation were introduced in the House and Senate seeking to condition federal funding on compliance with 8 U.S.C. § 1373—which was intended to address “sanctuary cities” and prohibit federal, state or local government officials or entities from restricting the exchange of information with the immigration authorities regarding citizenship or immigration status. None of those efforts were passed by Congress. See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3 (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2

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(2015); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. § 3(a) (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 2 (2015) (all available at https://www.congress.gov). see also Annie Lai & Christopher N. Lasch, Crimmigration Resistance and the Case of Sanctuary City Defunding, 57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (listing eight pieces of legislation introduced during that time, all of which were unsuccessful).
Chicago I, 888 F.3d at 277–78. The Attorney General’s reading would thus allow the Executive Branch to override Congress’ refusal to endorse § 1373 compliance and would effectively “legislate” a different result.
2.
Second, the Attorney General’s interpretation would vest the executive branch with unbridled power to identify select federal laws and impose them as a precondition for the receipt of federal grant money allocated by Congress. That discretionary authority is fundamentally inconsistent with the nature of the Byrne JAG grant as a formula grant, located in a separate section of the Act than the discretionary grants. See generally Bureau of Justice Assistance Grant Program, 34 U.S.C. § 10151 et seq. As a formula grant rather than a discretionary grant, the grant awarded is a function of the state or local government’s proportionate crime rate and population, and is incompatible with the sort of unbridled discretion that the Attorney General’s interpretation would yield. See Philadelphia, 916 F.3d at 290 (noting that Congress structured the Byrne JAG program as a formula grant, and that allowing the withholding of funds “because a jurisdiction does not certify

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compliance with any federal law of the Attorney General’s choosing undermines the predictability and consistency embedded in the program’s design, thus turning the formula grant into a discretionary one.”).5
The Attorney General dismisses this as a non-issue, declaring that the States and local governments were already subject to those laws and therefore the certification of compliance imposes no burden or barrier. He disclaims any role in determining which laws will be applied, stating that his interpretation “does not require compliance with laws ‘selected at the Attorney General’s uncabined discretion.’” Reply Brief, No. 18-2885, at 5. Instead, he declares that he is “not urging that the Attorney General has discretion to select applicable laws; rather, Congress has made laws applicable to Chicago, and Chicago must comply with them.” Id. at 5–6. But that argument is utterly inconsistent with the application process that the Attorney General has actually implemented and is meritless.
First, the grant application does not purport to track compliance with the entire universe of federal law. Instead, the Attorney General has singled out particular federal laws which act as a gatekeeper to control and limit access to the grant. That is apparent in the language of the application— which identifies specific statutes—and also in the Attorney General’s apparent absence of concern with the multitudes of

5 As we noted in Chicago I, the provision for discretionary grants is located in a different subpart of the same statute, and “imbues the Director (who reports to the Assistant Attorney General) with the authority to award funds on terms and conditions that the Director determines to be consistent with that subpart.” Chicago I, 888 F.3d at 286.

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other federal laws that apply by their terms to states and cities, such as OSHA requirements or EPA regulations or any other federal constitutional, statutory or regulatory law. In fact, the Attorney General has singled out § 1373 and required a separate certification of compliance for that statute alone, with penalties for false statements or omissions ranging from civil penalties to criminal prosecution. Rather than conditioning the award of the grant on evidence that the state or local government is in compliance with all federal laws that by their terms apply to states or local governments, the Attorney General conditions the award on a certification that the state or locality is in compliance with one specific law—§ 1373—as is trumpeted in the following notice to grant applicants:
Alert: New Requirements for Certain FY 2017 Programs
Consistent with OJP’s statutory authority to impose grant conditions, including 42 U.S.C. 3712, OJP will include—in an award document sent to a prospective FY 2017 Edward Byrne Justice Assistance Grant (“Byrne JAG”) recipient for acceptance—express award conditions concerning ongoing compliance with 8 U.S.C. 1373, throughout the award period, in the “program or activity” funded by the award. (In general, section 1373 bars restrictions on communication between State and local agencies and officials and the Department of Homeland Security (and certain other entities) with respect to information regarding the citizenship or immigration status of any individual.) States and units of local

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government that apply for awards under the FY

2017 Byrne JAG Program will be required—

prior to award acceptance—to submit a specific

certification from the chief legal officer of the

jurisdiction regarding the applicant’s

compliance with 8 U.S.C. 1373(a) and (b).

Interested applicants may view a sample

certification

document

at

https://ojp.gov/funding/Explore/SampleCertific

ations-8USC1373.htm.

In addition, consistent with OJP’s statutory authority, OJP will include in any FY 2017 Byrne JAG award (as part of the award document) additional express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.

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Overview of Legal Requirements, Dist. Ct. R. 26, Exh. M. That alert to future grant applicants expressly recognizes that the OJP has selected one federal statute to impose as a grant condition with requirements of certification that are specific to that statute. Its contention that Congress, rather than the Attorney General, has selected the laws that will constitute conditions of the grant is patently false.
The argument that the certificate of compliance imposes no burden because government entities were already required to follow the law fails for an additional reason. The identification of a federal law as an “other applicable law” for receipt of the grant imposes a penalty on the violation of that law that would otherwise not exist. It transforms every federal legal obligation into a potential basis to withhold funding that has been designated by Congress for disbursement to state and local governments for law enforcement. Yet that penalty for non-compliance is not a penalty set forth by Congress in those other statutes. Therefore, the interpretation by the Attorney General which could transform any federal law into a condition of the grant would indeed impose a burden not already provided by the federal law itself, in the form of a steep financial penalty. In fact, that “penalty” could extend well beyond the denial of the Byrne JAG grant if the Attorney General’s interpretation of “all other applicable federal law” is adopted. It would allow the Attorney General to withhold myriad other grants that have been authorized by Congress because that precise term is used in numerous other statutes—often as part of a statutory section that mirrors the one in the Byrne JAG grant at issue here—including statutes providing grants under: the Comprehensive Opioid Abuse Grant Program, 34 U.S.C. § 10702; Matching Grant Program for School Security, 34

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U.S.C. § 10552; Career and Technical Education Assistance to the States, 20 U.S.C. § 2322; and the Bureau of Justice Assistance Discretionary Grants, 34 U.S.C. §10181.
Interpreting that language as potentially incorporating any federal law would vest the Attorney General with the power to deprive state or local governments of a wide variety of grants, based on those entities’ failure to comply with whatever federal law the Attorney General deems critical. Yet there is nothing in those statutes that even hints that Congress intended to make those grants dependent on the Attorney General’s whim as to which laws to apply, cabined only by the requirement that the laws apply generally to states or localities. That anomalous result is avoided if we interpret the term “all other applicable federal law” to incorporate federal laws that explicitly apply to grants or grant recipients. As to those federal laws, Congress clearly intended them to apply to states and local governments applying for federal grants, and to impact those grants.
The potential for abuse is apparent. Here, the Attorney General has used the broad interpretation of “other applicable law” as a means of hijacking the legislatively-established Byrne JAG program to further particular policy goals of the Executive, despite the repeated refusal of Congress to impose such a prerequisite itself. The open-ended ability to choose federal laws at will would allow the targeting of states or policy issues if the Attorney General chose to do so. For instance, the Attorney General could effectively isolate specific states by requiring certification of compliance with federal law regarding controlled substances, thus disqualifying states or local governments that have legalized or decriminalized marijuana, or by requiring a certification of compliance with

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federal constitutional law such as Roe v. Wade, 410 U.S. 113 (1973), thus eliminating grant funding for states that recently have passed “heartbeat bills” and other legislation designed to challenge Roe. That would transform the highly-structured formula grant into one that vested total in the Attorney General to impose barriers to the grant through his choice as to which other federal laws to target as grant conditions.6
3.
The Attorney General’s identification of a specific law— and the conditioning of the grant on compliance with it—falls far astray from the language, context and structure of the statute itself. And a reading of the statutory language in a manner promoted by the Attorney General would raise potential constitutional and statutory concerns. First, as we have already discussed, the statute cited as providing the authority for the imposition of the condition grants no such power to the Attorney General. Moreover, the vesting of such discretionary authority in the hands of the Attorney General would render irrelevant or illogical the statute’s exacting delineation of the formula for grant awards and the precise limits on the extent

6 In addition to the impropriety of such discretion in a formula grant generally, the discretion to set conditions here is also problematic because the certification provided in § 10153(A)(5) is only a certification “in a form acceptable to the Attorney General” that the applicant will comply with all other applicable federal laws. The statute, then, grants discretion only over the form of the certification, not the content as the Attorney General seeks to assert here. Compare 13 U.S.C. § 141 (providing that “[t]he Secretary shall … take a decennial census of the population … in such form and content as he may determine … .”) (emphasis added); accord City of Providence, 2020 WL 1429579 at *11.

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to which the Attorney General can deviate from that distribution, as we discussed in Chicago I, 888 F.3d at 286:
The ability of the Attorney General to depart from the distribution mandated by the formula is strictly circumscribed. For instance, of the total amount available in a given fiscal year, the Attorney General is authorized to reserve “not more than 5 percent, to be granted to 1 or more States or units of local government” for one or more of the allowed statutory purposes, “pursuant to his determination that the same is necessary (1) to combat, address, or otherwise respond to precipitous or extraordinary increases in crime, or in a type or types of crime; or (2) to prevent, compensate for, or mitigate significant programmatic harm resulting from operation of the formula … .” 34 U.S.C. § 10157(b). Moreover, the Attorney General is authorized by other statutes to reduce the funding in certain circumstances, but even then the amount of the reduction is set by statute. For example, the Sex Offender Registration and Notification Act mandates a 10 percent reduction in JAG funding if a state fails to substantially implement its provisions. 34 U.S.C. § 20927(a). And the Prison Rape Elimination Act of 2003 stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance. 34 U.S.C. § 30307(e)(2)(A).

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In contrast to those carefully delineated reductions for specific circumstances, the Attorney General’s interpretation would allow the Attorney General to withhold 100% of funds based on his determination as to which federal law to target.
In addition to the dissonance with the statutory structure, the selective targeting of specific statutes without regard to the statute’s relation to the grant or its purposes could present constitutional concerns. First, we note that as the Supreme Court reaffirmed in Gundy, 139 S. Ct. at 2129, a statutory delegation of authority “is constitutional so long as Congress has set out an ‘intelligible principle’ to guide the delegee’s exercise of authority … [o]r in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee ‘the general policy’ he must pursue and the ‘boundaries of [his] authority.’” Although courts rarely second-guess the degree of policy judgment left by Congress to those responsible for executing the law, the term “applicable” by itself is so devoid of any definition or guidance that, if the Attorney General were relying on that provision as a delegation of authority to impose the conditions, it would vest discretion unmoored by any legislative general policy or boundaries of authority.
In fact, the Supreme Court in Gundy recognized the constitutional issues presented by statutory provisions vesting such broad discretion, in considering the Sex Offender Registry Notification Act (“SORNA”) which provided that “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter … and to prescribe rules for the registration of any such sex offender.” Id. at 2122. Although the Justices in the plurality

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decision in Gundy could not agree as to the outcome, a majority recognized that such a provision, if read as granting the Attorney General discretion to determine whether to apply SORNA to offenders rather than the mechanics of how to apply it, would present constitutional nondelegation problems. See Gundy, 139 S. Ct. at 2123, 2128 (plurality) (discussing the whether/how distinction and noting that it would present a nondelegation question if, as Gundy argued, the provision in the SORNA statute “grants the Attorney General plenary power to determine SORNA’s applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time”) and 139 S. Ct. at 2143, 2145 (dissenting) (noting that the provision “gave the Attorney General unfettered discretion to decide which requirements to impose on which pre-Act offenders” and that “[m]ost everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present ‘a nondelegation question.’”).
Here, the Attorney General’s interpretation of the “other applicable federal law” language would grant the type of unfettered discretion to determine whether a particular federal law will be a precondition of the grant that seven Justices of the Grundy Court recognized presents a constitutional nondelegation issue. Accordingly, the language of the statute, if read as delegating the authority to the Attorney General to choose which federal laws would constitute conditions of the grant, would raise grave constitutional concerns.
But the Attorney General has not relied on that language in that manner. Instead, the Attorney General asserts that Congress, with the “other applicable law” provision, itself

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imposed the condition on the grant under its Spending Clause power because Congress thereby incorporated all federal laws as grant conditions. Yet among the requirements for the constitutional exercise of such spending power, is the requirement that Congress, if it desires to condition the receipt of federal funds, “’must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’” South Dakota v. Dole, 483 U.S. 203, 207 (1987), quoting Pennhurst, 451 U.S. at 17. A state cannot knowingly accept the conditions of the federal funding if that state is unaware in advance of the conditions or unable to ascertain what is expected of it, and therefore we insist that Congress must speak with a clear voice. Pennhurst, 451 U.S. at 17. An interpretation of “other applicable federal laws” that is limited to laws that expressly apply to grantees is clearly ascertainable, in contrast to the broader interpretation of the Attorney General which is unbounded—which would literally include thousands of federal statutes and regulations.
The Second Circuit, in adopting the broad interpretation of the language that the Attorney General seeks, acknowledges—even celebrates—the unbounded authority that such an interpretation would provide, and makes clear that the interpretation will allow denial of the grant for federal laws entirely unrelated to the purposes of the grant such as environmental laws:
Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One

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has only to imagine millions of dollars in Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the Attorney General to condition the locality’s receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality, which includes environmental laws.
New York, 951 F.3d at 107–08.
We do not agree with that interpretation of the language. Congress, under its spending power, can attach only conditions that “bear some relationship to the purpose of the federal spending,” and the universe of all federal laws as promoted by the Attorney General would necessarily include many laws that fail to meet that standard—once again rendering the conditions ambiguous. New York v. United States, 505 U.S. 144, 167 (1992), citing South Dakota, 483 U.S. at 207–08 and n.3. Thus, the more narrow reading of the language is not only more consistent with the structure of the statute, but it avoids potential constitutional questions.
4.
Moreover, the narrower interpretation that we adopt today also avoids a conflict with 34 U.S.C. § 10228, which applies to the chapter that includes the Byrne JAG grant provisions. Section 10228 provides:

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(a) General rule
Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.
The incorporation of § 1373 as a condition of the Byrne JAG grant directly conflicts with § 10228. Through § 1373, the Attorney General seeks to prohibit the state or political subdivision from providing certain instructions and limitations on the actions of its own police force, thus exercising “direction, supervision, or control” over that police force. Nor does it matter that § 1373 prohibits the state from taking an action, as opposed to requiring an action. As the Supreme Court recognized in Murphy (in considering a claim under the anticommandeering doctrine of the Tenth Amendment), it does not matter whether a law commands a state to take an affirmative action or prohibits a state from taking an action—either situation involves the exercise of control over the state. Murphy, 138 S. Ct. at 1478. Section 1373 declares that a state or local government may not prohibit or restrict its own officials from communicating information regarding the citizenship or immigration status of any individual to the INS. That restriction of the state or local government would constitute direction or control over the communications by the state or local police force. Because § 10228 declares that “[n]othing in this chapter or any other Act shall be construed to authorize” such direction or control, we should not construe § 10153 in a manner that would incorporate § 1373 as a condition of the grant. See

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Philadelphia, 916 F.3d at 291 (noting that § 10228 may be a statutory limit to which laws are “applicable”).
Accordingly, based on the language, structure, and purpose of the Act, the reference to “all other applicable federal laws” in § 10153 should be read as referencing any federal law that by its terms applies to federal grants or grantees in that capacity. Accord Providence, 2020 WL 1429579 at *12. Because we so hold, we need not consider the alternative argument that § 1373 cannot be considered an “applicable federal law” even under the broader reading by the Attorney General because it is unconstitutional under the anticommandeering doctrine of the Tenth Amendment. See Pearson, 555 U.S. at 241 (noting that we generally should avoid constitutional questions if possible). The holding that § 1373 is not an “applicable federal law” equally dooms the argument that § 1644 provides authority for the compliance condition, as the parties concede that § 1644 is identical to § 1373.
V. Relief
We turn, then, to the final issue in this case, which is whether the district court erred in extending the injunction beyond the City of Chicago. In its Final Judgment and Order in the FY 2017 litigation, the district court granted declaratory and injunctive relief to Chicago. The district court ordered that “the Attorney General’s decision to attach the Conditions to the FY 2017 Byrne JAG grant is set aside and shall have no legal effect” and enjoined the Attorney General from “denying or delaying issuance of any FY 2017 Byrne JAG award insofar as that denial or delay is based on the Conditions.” Dist. Ct. Final Judgment and Order, R. 211 at 3. The court further held that “[t]his Order applies to the Attorney General’s imposition of the Challenged Conditions on the Byrne JAG grant

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program as a whole. Its effects run to the benefit of all Byrne JAG applicants and recipients are not limited to the City of Chicago and its sub-grantees.” Id. at 4. The court stayed the order as to all areas of the country beyond Chicago in light of the stay our court had granted pending the since-vacated grant of an en banc rehearing.
The court declared that § 1373 violated the Tenth Amendment’s anticommandeering principle and was therefore facially unconstitutional, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and that the Attorney General’s decision to attach the conditions to the FY 2017 Byrne JAG grant violated the constitutional principle of separation of powers. Dist. Ct. Final Judgment and Order, R.211 at 2. In the subsequent challenge to the FY 2018 grant conditions, the district court held that §§ 1373 and 1644 violate the Tenth Amendment’s anti-commandeering principles and are therefore facially unconstitutional, that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute and in § 10102(a) in attaching the challenged conditions to the FY 2018 Byrne JAG grant, and that the decision to attach those conditions to the grant violated the constitutional principle of separation of powers. The district court extended the permanent injunction it had imposed as to the FY 2017 Byrne JAG grant to include FY 2018 and all future years, enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award insofar as that denial or delay is based on the challenged conditions or materially identical conditions. Dist. Ct. Final Judgment and Order, Appellant Appendix, No. 19-3290, at SA50. The court stayed the

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injunction to the extent that it applied to grantees other than the City of Chicago.
The district court’s decision to extend the injunctive relief to include future years reflected the history of litigation and the positions taken by the Attorney General. In the litigation challenging the FY 2017 injunction, the Department of Justice attorney representing the Attorney General [hereinafter “DOJ attorney”], asserted that it would be premature to enjoin conditions in FY 2018 or the years to follow because those conditions were “still in formation and … will be different in some respects from the 2017 conditions.” Dist. Ct. Transcript of Proceedings, Doc. 213 at 5. The DOJ attorney then stated that although disagreeing with the district court’s analysis, “we’ve certainly taken it to heart. And so we are looking at the conditions for next year against the backdrop of your prior decision.” Id. He argued to the district court that relief beyond the specific year was improper because the issue was not yet ripe, arguing:
[DOJ attorney]: Your Honor, two things. One, the solicitation is not – are not the actual conditions. This is an invitation to seek a grant. It doesn’t expressly state what the conditions are.
Two, I’ve told you that we’re looking at those conditions and that we are taking to heart your prior decision. And three, I think your point about, if we impose the exact same conditions without notice and force them to affirmatively file a case, there might be other remedies available to the plaintiffs in that context.

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[District court]: That would mean their lawyers would get paid.
Id. at 5–6. Despite these assurances made by the DOJ attorney to Judge Leinenweber, the Attorney General nevertheless imposed the very same conditions again in the FY 2018 grant application, and indeed also added yet another condition that was identical to the § 1373 compliance condition as well as two more conditions that relied on the same statutory authority that the district court and this court rejected. In its FY 2018 Byrne JAG application, Chicago included an addendum indicating that it would not comply with those conditions. The Department of Justice began announcing grant recipients in the fall of 2018, issuing 752 Byrne JAG local awards by October 12, but still had not granted Chicago’s application; at that time Chicago filed a complaint challenging the FY 2018 conditions. About a month after Chicago filed suit, on November 20, the Department of Justice informed Chicago that it was awarded the grant. The Department of Justice subsequently announced that in light of the ongoing litigation, it would not enforce the notice, access, compliance, and additional certification conditions against Chicago, but that it retained the right to enforce the harboring condition.
The temporal scope of the injunctive relief in this case is proper. Injunctive relief is forward-looking, and a plaintiff injured by an unconstitutional or unlawful action in one year does not need to suffer injuries repeatedly in each ensuing year—and separately sue after each injury—to obtain relief from the unlawful actions. See United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (“[t]he sole function of an action for injunction is to forestall future violations”); see generally § 2942 Availability of Injunctive Relief—In General, 11A

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Fed. Prac. & Proc. Civ. § 2942 (3d ed.) (noting that injunctive relief looks to the future and is designed to deter rather than punish, and that even if the defendant claims the conduct has been discontinued, the court will deny injunctive relief only if there is no reasonable expectation of future injurious conduct). Injunctive relief is designed to prevent precisely that scenario. Once an injury is shown in the imposition of the grant conditions sufficient to demonstrate standing, Chicago can challenge the imposition of those conditions in the Byrne JAG grant, and that challenge is not temporally limited—at least where, as here, the challenge is not in any way related to the timing of the conditions. And of course, the Attorney General’s indication to the district court that it would alter the conditions in future grants proved false. See Oregon State Med. Soc., 343 U.S. at 333 (“It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.”). The district court need not await yet another round of the same conditions and the same rejected justifications before enjoining the future conduct.
A. Injunctive Relief Beyond City of Chicago
The Attorney General argues that, even if we agree with the district court on the merits, the court erred in extending injunctive relief beyond the City of Chicago. In Chicago I, 888 F.3d 272, the panel addressed a similar issue as to the preliminary injunctive relief, with the majority holding that nationwide injunctive relief was proper and with one panel member dissenting. Our court granted rehearing en banc to consider only the issue of the proper scope of the injunction, but that rehearing was vacated when the district court’s grant of the

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permanent injunction superseded the preliminary injunction. We now are presented again with the issue of the proper scope, although in the different context of a permanent rather than a preliminary injunction.
At the outset, we note that a remand is necessary for the district court to consider whether any additional injunctive relief is appropriate as to the unlawful imposition of the compliance condition. The court imposed declaratory relief as to the constitutionality of § 1373, and injunctive relief as to the imposition of that condition. But because we have determined that the term “all other applicable Federal law” encompasses only law that by its terms applies to federal grants or grantees in that capacity, we have not reached that Tenth Amendment issue. A remand is required to allow the district court to determine whether any additional injunctive relief is appropriate for the violation as we have framed it. For instance, the declaratory relief would no longer be necessary because § 1373 is inapplicable here, but other injunctive relief might be proper, such as enjoining the Attorney General from interpreting the phrase “all other applicable federal law” to include laws that do not explicitly apply by their terms to the grant or grantees. The Attorney General relied on that misuse of § 10153 to impose the § 1373 compliance condition on Chicago. In the FY 2018 grant, the government continues to require a certification of compliance with § 1373, but perhaps anticipating the foreclosure of that option, added the requirement of certification of compliance with the parallel provision in § 1644.
That FY 2018 condition leaves no doubt that the Attorney General intends to continue to interpret § 10153 as allowing the incorporation of federal laws unrelated to the grant or

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grantees. Because the injury to Chicago in this case, in relation to the compliance conditions in both § 1373 and § 1644, is caused by the Attorney General’s unsupportable interpretation of § 10153 as allowing the incorporation of all federal law as a condition of the grant, proper relief in this case could include an injunction preventing the Attorney General from incorporating federal law unrelated to grants or grantees as a condition of the grant under § 10153. The proper scope of any additional relief, however, is for the district court, not this court, to determine as an initial matter, and we remand for the district court to consider whether to order any other relief as to the unlawful imposition of the compliance condition in light of our decision. We review such decisions only for an abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). We may consider, however, the propriety of the injunctive relief that has already been granted as to all of the challenged conditions
1. Authority of the Court
Courts and commentators, particularly recently, have recognized serious concerns with imposing injunctive relief that extends beyond the parties before the court to include third parties. In fact, the question as to the authority of a court to issue such nationwide, or universal, injunctions, as well as the propriety of such injunctions, has spawned a veritable cottage industry of scholarly articles in the past few years. See e.g. Mila Sohoni, The Lost History of the “Universal” Injunction, 133 HARV. L. REV. 920, 924–25 N. 16 (2020) [hereinafter Sohoni, Lost History], citing: Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 HARV. L. REV. F. 49 (2017) [hereinafter Amdur & Hausman, Nationwide Injunctions]; Samuel L. Bray, Multiple Chancellors:

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Reforming the National Injunction, 131 HARV. L. REV. 417, 419 (2017) [hereinafter Bray, Multiple Chancellors]; Zachary D. Clopton, National Injunctions and Preclusion, 118 MICH. L. REV. 1 (2019); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065 (2018) [hereinafter Frost, In Defense]; Suzette M. Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 HARV. L. REV. F. 56 (2017) [hereinafter Malveaux, Class Actions]; Michael T. Morley, De Facto Class Actions?: Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 HARV. J.L. & PUB. POL’Y 487 (2016); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. REV. 615 (2017); Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095 (2017); Alan M. Trammell, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67 (2019); Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 LEWIS & CLARK L. REV. 335 (2018) [hereinafter Wasserman, Nationwide Injunctions]. 7 Those articles are a response to the perceived increase in the utilization of universal injunctions in the past few decades. It is a question for another forum whether any such increase signals an expanding judicial overreach or an increasing executive autocracy.
As to the authority to issue such injunctions, some urge that injunctions extending beyond the parties before the court

7 The terms “nationwide” and “universal” injunctions are both used by courts and commentators to describe injunctions for which relief extends beyond the plaintiff, see Wasserman, Nationwide Injunctions at 352–53, and we use these terms interchangeably in this opinion. As to the relief provided in this case, we use “program-wide” injunction because it is more descriptive of the actual reach of the injunction here.

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are a recent invention, first appearing in the 1960s, and that the absence of such equitable relief before that time should cause us to question the legitimacy of that remedy. See e.g. Trump v. Hawaii, 138 S. Ct. 2392, 2425 & 2428 (2018) (Thomas, J. concurring) (indicating that the first universal injunction emerged “a century and a half after the founding,” in 1963, and “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts”); see also Bray, Multiple Chancellors at 437–38; Wasserman, Nationwide Injunctions at 353.
But recent scholarship casts doubt on that constricted window of universal injunctions, exhaustively documenting the use of injunctions that extend beyond the plaintiff going back over a century, from a Supreme Court decision in 1913 to the present. See Sohoni, Lost History, 133 Harv. L. Rev. 920, 924 (2020); see also Samuel Bray, A Response to The Lost History of the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Comment (Oct. 6, 2019) available at: https://www.yalejreg.com/nc/ a-response-to-the-lost-history-of-the-universal-injunctionby-samuel-bray/ (last visited 4/7/2020) (discussing “four serious problems” with Sohoni’s analysis), and Mila Sohoni, A Reply to Bray’s Response to The Lost History of the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Comment (October 10, 2019) (http://perma.cc/P8BA-2UJ6 (last visited 4/7/2020) (refuting Bray’s concerns). Sohoni meticulously examines equitable remedies in the past century, documenting the equitable relief that extended to non-parties throughout that history, and reaching the conclusion that universal injunctions are consistent with those traditional equitable remedies. Id.
That conclusion has found support as well in an amicus brief submitted to this court by a group of legal historians,

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professors at Stanford and Columbia Law Schools and Princeton University, who concluded that “[n]ot only did equity courts have the equitable power to grant injunctions that look like modern nationwide injunctions (save they did not run against the federal government itself),8 but they in fact issued injunctions of astonishing scope.” Brief of Amici Curiae Legal Historians In Support of Plaintiff and Appellee the City of Chicago [hereinafter “Amicus”], No. 18-2885, at 6. That wide scope included even exercising “their equity powers at nationwide scale in the 19th and early 20th centuries, to enjoin the activities of hundreds of thousands of individuals, including thousands of non-parties.” Amicus at 18. Bray, a leading opponent of universal injunctions, disagreed with their conclusions, but nevertheless acknowledged the gravitas of the authors of that amicus brief, characterizing the authors as “an all-star cast of legal historians and historians of the early Republic” and recognizing that “[t]hese historians have written some of the leading scholarship on American equity.” Bray, National Injunctions: Historians Enter the Lists, THE VOLOKH CONSPIRACY (Nov. 17, 2018, 2:21 PM), https://reason.com/2018/11/17/national-injunctions-historians-enter-th/ (last visited 4-7-2020). Those historians examined the relief provided in equity from the 18th century onward, such as bills of peace as well as ordinary bills for injunctions

8 They subsequently explained that injunctions restraining the “United States” from nationwide enforcement of a law could not happen until after 1976, when the United States enacted its first general waiver of sovereign immunity, and that suits to restrain high level executive branch officials like the Attorney General were difficult to bring because “[i]n the absence of the modern venue statute, and because of doctrinal barriers that no longer exist, a modern nationwide injunction could only have been brought in Washington, D.C.” Amicus at 18–19.

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including injunctions to abate nuisances, and concluded that “equity courts had the equitable powers to issue nationwide injunctions in the early republic,” and “have long issued injunctions that protect the interests of non-parties.” Amicus at 6, 8. In fact, the historians noted periods of time in which the equitable remedies were much more drastic, extending as far as enjoining non-parties (which it noted would not be accepted today) and including a period of time in which injunctions were so broad they were called “omnibus injunctions” and “Gatling-gun injunctions.” Amicus at 16–17. They noted that those omnibus injunctions were repeatedly upheld by the Supreme Court, and ultimately Congress used its power to restrain their issuance. Amicus at 17. Although concluding that nationwide injunctions are historically grounded, the legal historians cautioned against an approach that would anchor equitable remedies too closely to the “notoriously difficult subject” of history, noting that the continuity of some traditional equity practices should not foreclose adapting equitable remedies to modern circumstances. Amicus at 25; see also Frost, In Defense at 1081.
2. Consistency with Supreme Court Law
Therefore, there is a substantial historical basis for the concept of injunctive relief that extends to the benefit of nonparties. The Attorney General and the dissent in this case nevertheless argue that universal injunctions are inconsistent with the Supreme Court’s decision in United States v. Mendoza, 464 U.S. 154 (1984). The Mendoza Court held that the government in that case should not be subjected to nonmutual offensive collateral estoppel because the “economy interests underlying a broad application of nonmutual collateral estoppel are outweighed by the

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constraints which peculiarly affect the government.” Id. at 162–63. The Court was concerned with the impact on the government if one decision could bind the government as to that legal issue in any subsequent cases brought by other litigants. The Attorney General and the dissent argue that the same danger is presented in a universal injunction.
There are, however, important distinctions between nonmutual offensive collateral estoppel and a universal injunction. First, as is obvious, the legal concepts at issue here are not identical, so the Court’s decision as to an estoppel issue is in no way dispositive of the question as to the availability of universal injunctions. The significance of Mendoza must come from its reasoning, then. But the very different contexts make Mendoza of less relevance to this question. As to collateral estoppel, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” Id. at 158. The principle would apply to litigation remote in time, involving different underlying causes of actions, and regardless of whether the litigant in the subsequent suit was similarly situated to the one in the past case.
That expansive reach presented issues uniquely problematic for the government. Whereas in disputes over private rights between private litigants, there was “’no sound reason for burdening the courts with repetitive litigation,’” the position of the government is not identical to that of the private litigant. Id. at 159–60., quoting Standefer v. United States, 447 U.S. 10, 24 (1980). The government is more likely to be involved in cases with significant legal issues and is likely to be sued more often than a private party, thus increasing the

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potential for estoppel to be invoked. Id. at 160. In addition to depriving the government of the benefit of multiple courts of appeal weighing in on the issue, the application of estoppel would force the government to appeal every time it disagreed with a legal issue regardless of the significance of the case in which it was presented, or risk being bound by that holding in a later case of more importance to the government. Id. at 160–61. Finally, the use of estoppel would prevent subsequent Administrations from altering the government’s position on a legal issue, thus upsetting the ability of the Executive Branch to adapt to the changing philosophies of subsequent political leaders. Id. at 161–62. In light of those concerns unique to the government as a litigant, the Court held that “[t]he conduct of government litigation in the courts of the United States is sufficiently different from the conduct of private civil litigation in those courts so that what might otherwise be economy interests underlying a broad application of collateral estoppel are outweighed by the constraints which peculiarly affect the government.” Id. at 162–63.
The concerns expressed by the Court as to the use of estoppel against the government are not equally present in the context of the universal injunction. Of course, both situations present the concern with one court’s decision preventing the percolation of the issue in different courts. But unlike the collateral estoppel context, the universal injunction by its nature will concern an issue that is common to all parties bound by it who will be similarly-situated, will involve an issue of obvious and significant impact (thus not presenting the government with the need to appeal every adverse legal decision in even minor cases), and will not interfere with the ability of future Administrations to change policies (because the impact of the universal injunction will be felt in one ongoing case that

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would be appealed, not in unlimited, unforeseeable cases in the future). Its restriction on the government’s ability to relitigate an issue will be limited to that case and will not raise the prospect of impacting future unforeseeable situations remote in time. Therefore, the reasoning of Mendoza counsels an outcome as applied to universal injunctions. See Frost, In Defense at 1113. To the extent that Mendoza identifies factors relevant to both estoppel and universal injunctions, the weighing of the factors should occur—as it routinely does—in the district court’s discretionary determination as to the appropriate equitable relief. The situations are not similar enough to support a blanket prohibition of universal injunctions under the reasoning of Mendoza.
And the decisions of numerous courts post-Mendoza, including the Supreme Court itself, support that conclusion. The historical underpinning for the argument that courts have the power to issue universal injunctions is complemented by the actual allowance of injunctions benefitting non-parties more recently. As we noted in Chicago I, the Supreme Court in Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080 (2017) (“IRAP”), allowed an injunction to remain in place that applied to non-parties. 888 F.3d at 289. In IRAP, the Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The Court recognized that “[c]rafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” IRAP, 137 S. Ct. at 2087. The Court granted the government’s request to stay the injunction as to foreign nationals who lacked any bona fide relationship with a person or entity in the United States, but refused to stay the

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injunction not only as to the respondents in the case, but also as to persons not parties to the case who were similarly situated. Id. at 2088. If the lower court was without the power to impose an injunction that provided relief to non-parties, and thus relief greater than that necessary for the parties before the court, then the Supreme Court’s decision to allow the injunction to remain in place as to those non-parties would be inexplicable.
The concurring and dissenting justices in IRAP would have stayed the injunction entirely, but particularly argued that the injunctions should not have remained in place as to “an unidentified, unnamed group of foreign nationals abroad” for whom no class had been certified and in a case in which neither party had asked for the scope of relief applied by the Court. Id. at 2090 (Thomas, J. concurring in part, dissenting in part). They further asserted that the role of courts was to provide complete relief only to the plaintiffs, and not to non-parties. Id. The IRAP Court’s refusal to stay the injunction as to similarly-situated individuals, in light of those arguments in the dissent, should put to rest any argument that the courts lack the authority to provide injunctive relief that extends to non-parties. See Frost, In Defense at 1086.
3. Propriety of Injunctive Relief
Therefore, both historical and current practice lends support to a determination that the courts possess the authority to impose injunctions that extend beyond the parties before the court. The propriety of such an injunction, in a given case, is another matter.
Such injunctions present real dangers, and will be appropriate only in rare circumstances. For instance, a nationwide

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injunction can truncate the process of judicial review, elevating the judgment of a single district court. That effect, however, is not absolute. As a practical matter, the issuance of such an injunction is unlikely to dramatically foreclose all other review, because the possibility of a stay while seeking review in the court of appeals—as happened here—limits the immediate impact on litigation in other jurisdictions, and ensures review by multiple judges in short order. See Amdur & Hausman, Nationwide Injunctions at 53 n.27 (providing examples in which nationwide injunctions did not foreclose percolation). But even if the impact is not absolute, it is nonetheless a concern and has the clear potential to narrow the input from different judicial panels. Moreover, the potential for forum shopping is a real hazard and alone should caution against such broad injunctive relief. See e.g. Bray, Multiple Chancellors at 457; Frost, In Defense at 1104.
That does not, however, mandate a conclusion that universal injunctions are never proper. See Frost, In Defense at 1105 (noting that “[a]bolishing nationwide injunctions is both an over- and under-inclusive response to that problem”). In some circumstances, universal injunctions can be necessary “to provide complete relief to plaintiffs, to protect similarlysituated nonparties, and to avoid the chaos and confusion that comes from a patchwork of injunctions.” Id. at 1101. Just as the percolation through the courts is a valid consideration, so too the desire to avoid a multiplicity of suits has long been a consideration in equity, which even the opponents of universal injunctions acknowledge. See Bray, Multiple Chancellors at 426; Hawaii, 138 S. Ct. at 2427 (Thomas, J, concurring).
An outright prohibition of such injunctions, however, would handcuff the ability of courts to determine the relief

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that is proper in exceptional circumstances. Any number of factors could influence a court’s determination as to the proper scope of an injunction, including the nature of the violation, the extent of the impact, the urgency of the situation, the multiplicity of litigation, and the ability of others to even access the courts. IRAP presented the type of situation in which the remedy of a universal injunction can be particularly crucial. 137 S. Ct. 2080. As we stated above, in that case, the Supreme Court denied in part a request for a stay of a nationwide injunction in a challenge to an Executive Order that suspended entry of foreign nationals from seven countries. The travel ban was imposed suddenly, impacting an immense number of people immediately—including people who were already on planes to the United States—and the ability of persons affected by the ban to access the courts individually for redress was extremely limited. In such a circumstance, a court that in its discretion determines that the equities of the case and the substance of the legal issues justifies an injunction, should not be limited to imposing that relief only as to those few persons who could obtain attorneys or present themselves in court.
Nor is the presence of the vehicle of a class action a realistic alternative in such a case. The difficulties, expense and delay inherent in pursuing a class action would render it inadequate for the type of situation presented in IRAP. As noted by Frost,
[d]emonstrating these prerequisites [of numerosity, commonality and typicality and the adequacy of the named plaintiff to represent the class] is difficult and time consuming and has been getting harder as a result of recent court

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decisions and federal legislation. Courts have heightened the evidentiary standard for class certification, requiring hearings and sometimes significant amounts of evidence on the merits of the case before certifying the class. In recent years, courts have started to deny class certification if they think there has been a flaw in class definition. These courts typically deny certification without first allowing the plaintiffs to amend that definition in response to the court’s concerns. Under Federal Rule of Civil Procedure 23(f), defendants can seek interlocutory review of a court’s decision to certify a class, adding further delay and expense to the certification process. Noting these difficulties, one commentator has described the class certification process as a “drawn-out procedural bog,” which comes with significant expense and delay for the would be class member.
(footnotes omitted) Frost, In Defense at 1096–97, quoting Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183, 208; see also Malveaux, Class Actions at 59 (describing the increasing hurdles to class actions and arguing that “Bray’s concession that ‘the requirements for a class action will not always be easy to meet’ understates the significant hurdles erected over the last fifty years”). The class action mechanism is not an adequate substitute for a universal injunction in the proper case.
Absent the ability to grant injunctive relief that extends beyond the particular party, courts will have little ability to check the abuse of power that presents the most serious threat

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to the rule of law – such as that which is swift in implementation, widespread in impact, and targeted toward those with the least ability to seek redress. Although circumspection is appropriate in ascertaining whether such relief is appropriate, an outright ban of such injunctions is neither required by history nor desirable in light of the range of situations—some as unpredictable and impactful as the sudden travel ban—that courts may confront.
That said, it is a more difficult question as to whether the nationwide injunction is proper in this case. In exercising its discretion to impose the permanent injunction nationwide, the district court identified a number of factors that strongly weighed in favor of an injunction that included more comprehensive relief. The court first noted that compliance with the Attorney General’s conditions would damage the relationship between local law enforcement and immigrant communities, and would decrease the cooperation with those communities that is critical to preventing and to solving crimes. The court held that the loss of trust, which once lost is not easily restored, would cause irreparable harm that could not be remedied with money damages. Moreover, the court held that the balance of hardships favored Chicago, noting that the Attorney General could distribute the funds without imposing the conditions, and nothing in the injunction would prevent any state or local government from coordinating its local law enforcement with the federal authorities absent those unlawful conditions. Finally, the court recognized that the public interest was served by an injunction in that it acts as a check on the executive’s encroachment of congressional power that violates the separation of powers.

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The Attorney General does not address those factors and does not question the court’s determination that injunctive relief is proper. Instead, the Attorney General focuses his challenge on the scope of the injunction, asserting injunctive relief must be limited to that necessary to provide complete relief to the plaintiff and cannot extend to non-parties. But as we have already discussed, courts have the authority to extend injunctive relief to non-parties, and therefore those arguments fail.

The district court identified a number of considerations

that supported extending injunctive relief in this case

program-wide and to include future years. Among those

considerations was the Attorney General’s repeated

imposition of the conditions despite adverse court rulings.

Upon our decision affirming the grant of the preliminary

injunction in this case, the Attorney General took the highly

unusual step of seeking en banc review only as to the scope of

the injunction, declining to present for en banc consideration

our holding that the Attorney General’s claim to lawful

authority was unfounded. And despite his failure to seek

rehearing as to the preliminary injunctive relief to Chicago

itself, the Attorney General continued to refuse to release the

grant funds to Chicago, choosing instead to withhold the

grant of all funds to all recipients. See U.S. Department of

Justice FY 2020 Performance Budget Office of Justice

Programs

March

2019,

https://www.justice.gov/file/1144566/download, at 99–100

(last visited 4-8-20) (noting that of the $403 million available

for Byrne JAG grants in FY 2017, only $254.4 million had been

awarded and similarly only $256 million of the $415.5 million

available had been awarded in FY 2018, and explaining in a

footnote that some FY 2017 and FY 2018 formula grants had

not been released to grantees as a result of “concerns

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regarding compliance with federal immigration laws and ongoing litigation related to those matters.”) Because of that conduct, the district court explicitly enjoined the Attorney General from denying or delaying the issuance of the grant funds in the permanent injunction.
Moreover, as described earlier, the Attorney General assured the district court that the permanent injunction need not cover future years, because the conditions imposed in future years would reflect a careful consideration of the court’s holdings as to their legality. The court accepted that assurance, and yet the Attorney General proceeded to impose the identical conditions on the grants for the next year, issuing an award to Chicago that was not dependent on satisfaction of the unlawful conditions only after Chicago filed suit yet again. See City & Cty. of San Francisco, 372 F. Supp. 3d at 940– 41 (“There is no dispute that certain challenged conditions in the fiscal year 2018 Byrne JAG Program are functionally the same as the notice, access, and Section 1373 certification conditions in the fiscal year 2017 Byrne JAG program at issue in the previous related litigation.”). Despite choosing to forgo en banc review as to the unlawfulness of the grant conditions, and with no change in the legal basis for those conditions, the Attorney General persists in his determination to impose conditions on the Byrne JAG grant that we held unlawful and that Congress itself has failed to impose. Those actions make manifest that each and every state and local government will have to bring its own suit in order to obtain relief (and possibly for each new grant year, given the Attorney General’s penchant for adding new statutory authorizations – even ones identical in language to rejected ones), leaving behind those who cannot afford such litigation. The concern with multiplicity of

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litigation is a valid factor in assessing the appropriate scope of injunctive relief.
As the district court held, the nature of the violation also supports the scope of the injunction here, in that it involves a violation of the separation of powers doctrine. The nature of the injury is a valid consideration in determining the proper scope of injunctive relief. Whether deemed a statutory or a constitutional violation, the executive’s usurpation of the legislature’s power of the purse implicates an interest that is fundamental to our government and essential to the protection against tyranny. See Dalton v. Spector, 511 U.S. 462, 472 (1994) (distinguishing ultra vires claims, alleging an action that exceeded the authority, from constitutional claims, alleging an absence of any authority).
At its core, this case implicates principles of federalism— involving federal intrusion into spheres of power possessed by states—and, more directly, principles of the separation of powers between the executive, the legislative, and the judicial branches.
Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty….. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty.
…
If Congress could pass off its legislative power to the executive branch, the “[v]esting [c]lauses,

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and indeed the entire structure of the Constitution,” would “make no sense.” Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice. Accountability would suffer too.
…
[E]nforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of “fortitude … to do [our] duty as faithful guardians of the Constitution.”
Gundy, 139 S. Ct. at 2134–35 (Gorsuch, J., joined by the Chief Justice and Thomas, J., dissenting). In our case, the executive

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branch has usurped the power of the legislature to determine spending and to set conditions on that spending. It has done so to conscript the police power of the states to serve the civil immigration goals of the federal government. The challenged actions strike at the heart of the vital principles of separation of powers and federalism and comity for state’s rights.
That is particularly true in this case where the revolving door of statutory provisions relied upon by the Attorney General as authorization for the withholding of funds upends the process. Like a whack-a-mole game at a carnival, the Attorney General has presented the courts with one statutory “authorization” after another for the decision to withhold all Byrne JAG funding from sanctuary cities—from § 10102(a)(6) initially to §§ 10153(A)(4), 10153(A)(5)(C), and 10155 before the First and Second Circuits for the notice and access conditions; from § 1373 to § 1644 for the federal law supporting the compliance condition; and from § 10102(a)(6) to § 10153(A)(5)(D) as the catch-all for the conditions. See e.g. City of Providence, 2020 WL 1429579 at *6–9. By relying on a moving target of statutory provisions, the Attorney General undermines his own argument that the conditions were a response to a legislative grant of authority rather than an executive policy in search of a legislative “hook.” The nature of the violation in this case strongly weighs in favor of more comprehensive relief, both because respect for the separation of powers is fundamental to our government, and because the willingness to add new “statutory authorizations” every time a court strikes one down—and to reimpose conditions on jurisdictions in ensuing years that have already been rejected—portends a multiplicity of litigation that would be a drain on the resources of the courts. At this point in time, five circuits have weighed in on the issues, diluting the benefit of

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any additional “percolation” through the courts. Those factors provide strong support for the district court’s determination that program-wide relief extending to nonparties is proper.
B. Injunction as Providing Complete Relief to Plaintiff
But we should avoid deciding that more expansive issue if a more narrow approach is available, and it is available here. It is widely accepted—even by self-professed opponents of universal injunctions—that a court may impose the equitable relief necessary to render complete relief to the plaintiff, even if that relief extends incidentally to non-parties. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Wasserman, Nationwide Injunctions at 360–61; see, e.g., McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (noting that “in reapportionment and school desegregation cases, for example, it is not possible to award effective relief to the plaintiffs without altering the rights of third parties”); Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (recognizing, for instance, in two malapportionment cases, that “the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale ‘restructuring of the geographical distribution of seats in a state legislature’”).
The Byrne JAG grant is a formula grant, not a discretionary grant. The determination of the funds that will be provided to a grantee is based upon a very structured, precise calculation that is set forth by Congress at 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755), and the amount received by a specific state or locality is dependent on the calculations related to the other states and localities. Therefore, to provide complete and accurate relief to Chicago now and in the future, and ensure that it receives the allocation that it would receive if

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the Attorney General did not apply the unlawful conditions, the allocations as a whole must be lawfully determined. In this formula grant, the relief from the unlawfully-imposed conditions must be applied program-wide in order for the grant amounts to be properly calculated for the plaintiff itself.
Before delving into the minutia as to the structure of the Byrne JAG awards and the interrelationship of the grants, it might be helpful to provide a brief overview. If every grantee was allocated a set grant amount, independent from each other, then relief for Chicago could be calculated and awarded in a vacuum. There would be no need to enjoin the conditions beyond Chicago to redress the monetary injury, because the imposition of the conditions beyond Chicago would not impact Chicago’s grant award. But that is not the case. The slice of the Byrne JAG pie that Chicago receives is related to the slices received by Illinois and other states, and if the imposition of the unlawful conditions eliminates Illinois or other states from receiving their own awards, then that can impact Chicago’s award as well. The grant awards are statutorily interrelated.
The Byrne JAG program allocates grant amounts to some localities directly, and also allocates grant amounts to each state, which then must pass on a certain percentage to other localities. If a state is unable to qualify to receive funds under the program, that state’s award is redistributed to the localities. In that way, the amount a locality can receive is connected to the amount the state is awarded and to the ability of the state to participate in the program. And the amount that the state is awarded is itself impacted by the amounts awarded to other states. In a number of ways, Byrne JAG funds can be redistributed from some states to other states,

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thus decreasing some states’ awards and increasing the award for the other states.
The Byrne JAG conditions challenged here disrupt the entire distribution plan, because they can prevent the states from even applying for an award—and clearly prevent the states from receiving a Byrne JAG award—if they cannot comply with the unlawful conditions at issue in this case. Because the awards to states are interrelated, and the award for localities is also related to the award to states, the imposition of the unlawful conditions impacts the proper calculation of all awards, including awards to localities such as Chicago.
As we will see, the Attorney General does not really contest that Chicago’s award could be impacted by the imposition of conditions on states. Instead, the Attorney General argues that we need not be concerned with that because the imposition of the unlawful conditions on other grant applicants would be a windfall to Chicago, resulting in a higher grant amount than it would otherwise receive, and Chicago cannot complain of receiving a higher amount. As we will discuss, the impact on Chicago if the unlawful conditions are applied to the states would not necessarily be an increase in its grant amount; it could operate to decrease the grant to Chicago as well. Moreover, even an improper increase in its award would be problematic. Once we have concluded that the Attorney General is without the authority to impose the challenged conditions, the court’s role should be to ensure that Chicago receives the grant it would have been entitled to absent the unlawful conditions. Courts should not impose relief that makes Chicago an involuntary beneficiary of the very conduct that it seeks to enjoin. That can only be assured if the Byrne JAG awards as a whole are calculated absent the

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imposition of the conditions, and therefore program-wide injunctive relief was appropriate.
1. Statutory Formula for Allocation
That is the overview. We turn, now, to the details. As an initial matter, it is important to understand the statutory formula for calculating grants, with its awards to states and localities. In this subpart, we describe the statutory formula for the initial allocations of funds as to states and localities. That is the base, from which subsequent redistributions will occur, which we discuss in subsections 2 and 3. The dissent argues that we misunderstand § 10156(d) and (e) as making Chicago’s award contingent on any governing body’s compliance with the unlawful conditions. We do not argue that § 10156(d)-(e) has any such effect. Those provisions set forth the formula for the allocation of funds at the outset, which is determined proportionally and therefore will inform redistributions of funds as well. Subsections 2 and 3 demonstrate the redistributions of funds that are provided in the statute, and explain how the imposition of the unlawful conditions on states can alter that redistribution and thereby impact Chicago’s Byrne JAG grant award.
Consideration of the precise formula delineated by Congress in § 10156 makes clear the need for program-wide relief. Under that statute, the Attorney General first determines the initial allocations to states and U.S. territories (hereinafter collectively referred to as “states”), allocating half of the available funds based on the ratio of a state’s population to the national population, and half allocated based on the ratio of a state’s share of violent crime to that of the nation. 34 U.S.C. § 10156(a)(1). If that number falls below the minimum allocation provided in § 10156(a)(2), reflecting 0.25% of the total

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Byrne JAG allocation, the state is awarded that minimum allocation. The population and crime data from those states receiving the minimum allocation is excluded in calculating the ratios in § 10156(a)(1). With the exception of the U.S. territories and the District of Columbia, 60% of the total allocation to a state is retained by the state, with 40% set aside for local governments. § 10156(b). The amounts allocated to local governments are calculated based on their share of all violent crimes reported in the state. §10156(d). If the local government is entitled to an award greater than or equal to $10,000, then that unit of local government is eligible to receive the award directly. § 10156(c)–(e). If the amount allocated to a unit of local government is less than $10,000, that amount is returned to the state governments for redistribution to state law enforcement agencies and local governments. Id. Moreover, units of local government may not receive a Byrne JAG award that exceeds that local government’s total expenditures on criminal justice services for the most recently completed fiscal year, and therefore award amounts in excess of that total expenditure are reallocated proportionally among other units of local government. § 10156(e)(1).
The formula for grant distribution also recognizes that, in some circumstances, a disparity can exist between the funding eligibility of a county and its associated municipalities. The three types of disparity include: a zero-county disparity, when one or more municipalities within a county are eligible for a direct award but the county is not, yet the county is responsible for providing criminal justice services for the municipality and therefore should be entitled to part of the municipality’s award; a disparity in which both a county and a municipality within it qualify for a direct award, but the award amount for the municipality exceeds 150% of the

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county’s award amount; and a disparity in which a county and multiple municipalities within that county are all eligible for direct awards, but the sum of those awards exceeds 400% of the county’s award amount. § 10156(d)(4); see also BJA Technical Report, Justice Assistance Grant Program, 2016, https://www.bja.gov/JAG/pdfs/JAG-Technical-Report.pdf at 2–6 (“BJA Technical report”) (last visited 4-8-2020); BJA Edward Byrne Memorial Justice Assistance Grant Program Frequently Asked Questions https://bja.ojp.gov/sites/g/files/ xyckuh186/files/media/document/JAGFAQ.pdf at 23–24 (last visited 4-8-2020). Jurisdictions subject to such disparity must identify a fiscal agent to submit a joint application for the aggregate of funds to which the units of local government are eligible, and that joint application must specify the amount of funds to be distributed to each of the units of local government and the purposes for which the funds will be used. Id.
Accordingly, the statutory formula for distribution of Byrne JAG funding includes both direct and indirect distributions to states and units of local government, and in some circumstances requires a unit of local government to submit a joint application on behalf of itself and specified geographically constituent units of local government. Chicago falls within those provisions, and therefore it files its application for Byrne JAG funding on behalf of itself but also on behalf of eleven other neighboring units of local government. Chicago I, 888 F.3d at 292. For instance, the City of Evanston, which is currently pursuing its own challenge to the Byrne JAG conditions along with the United States Conference of Mayors, receives its funds indirectly through an application submitted by the City of Chicago.

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The statute therefore employs a precise formula for determining the amounts to be awarded to applicants, including states and units of local governments. Because the amounts allocated are based on percentages, the actual amount that a unit of local government such as Chicago will receive is dependent on the number of applicants and the local government’s share of all violent crimes reported in the state relative to those other applicants. Nor is the award a static one that, once awarded, is automatically and permanently distributed to the applicants. The awards themselves are for a four-year period of time. During that time, the award requires of each applicant ongoing compliance with the terms of the award, which according to the Attorney General, includes the requirement of compliance with § 1373. An inability to comply with § 1373 during that time can result in the loss of the award. As we will explain, when a state is forced to relinquish its award or cannot qualify for an award in the first place for any reason including the unlawful conditions, that situation can impact the award amount provided both to localities and to other states.
Essentially, application of the unlawful conditions to the Byrne JAG program can impact Chicago’s grant in any of three different ways: (1) if applied to Chicago, it will eliminate its grant entirely; (2) if applied to Illinois, it could disqualify Illinois from receiving a grant and increase Chicago’s grant award as described in subsection 2; (3) if applied to other states, it can impact Illinois’ award either by increasing or decreasing the award that Illinois otherwise would get as described in subsection 3. And again, that altered amount can impact Chicago’s award as described in subsection 2—even if the unlawful conditions were not applied to Illinois.

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2. Redistribution from State to Locality
First, a state’s inability to participate in the Byrne JAG program for any reason, including the inability to comply with the unlawful conditions, can result in an increase in the grant received by the locality. In that way, the grant for the locality is interconnected with the grant to the state.
Section 10156(f) explicitly provides for additional funding to units of local government, where a state is unable or unwilling to comply with the program’s requirements during that time, as follows:
(f) Funds not used by the State
If the Attorney General determines, on the basis of information available during any grant period, that any allocation (or portion thereof) under this section to a State for such grant period will not be required, or that a State will be unable to qualify or receive funds under this part, or that a State chooses not to participate in the program established under this part, then such State’s allocation (or portion thereof) shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State, giving priority to those jurisdictions with the highest annual number of part 1 violent crimes of the Uniform Crime Reports reported by the unit of local government to the Federal Bureau of Investigation for the three most recent calendar years for which such data are available.

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(emphasis added). Thus, even after the initial award, during that four-year period of the grant the Attorney General could determine that a State no longer qualifies to receive funds, and those funds will be redistributed to the units of local government, as long as that allocation does not exceed the local government unit’s total expenditure on criminal justice services for the most recently completed fiscal year for which such data is available. § 10156(e)(1). That can result in a redistribution of funds from Illinois to its localities for any of a number of reasons; one of those possible reasons is if the unlawful conditions were applied to Illinois and it was unable to comply with those conditions.
The possibility of that provision impacting Chicago’s grant amount is far from negligible. The State of Illinois, for instance, recently passed the Keep Illinois Families Together Act, 5 ILCS § 835/1, which forbids local law enforcement agencies or officials from participating in the federal 287(g) program, an ICE program that allows local law enforcement officials to identify and remove undocumented residents from the United States. Id. at § 835/5. If the Attorney General were to determine that the law operated to restrict a local government official’s ability to send or receive information regarding immigration status in violation of § 1373, or if Illinois were to extend its protections of its families to prevent all communications regarding immigration status, then under § 10156(f) the funds awarded to the State of Illinois could be redistributed to units of local government.
Regardless of whether the State of Illinois is in compliance with the unlawful conditions, the point here is that the award to a unit of local government such as the City of Chicago can be impacted by the award and compliance status of the state

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and the other units of local government, not just in the grant year but in the three years following it. That would require, at a minimum, that injunctive relief extend to the state level. But an injunction prohibiting the application of the unlawful conditions to Illinois would not itself ensure that Chicago receives the proper grant amount because, under § 10156(f), any number of scenarios can result in the redistribution of Illinois’ grant award to its localities. And the grant that Illinois receives, which can then be redistributed to its localities, is itself impacted by the enforcement of the unlawful conditions as to the other states. That is because the structure of the Byrne JAG program renders the grants at the state level interrelated as well. See City and County of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018); Wasserman, Nationwide Injunctions at 387–88 (acknowledging that the Ninth Circuit properly allowed the injunction to run to non-party California because the state grant could impact San Francisco’s grant).
3. Redistribution from State to State
Byrne JAG grant awards to each state are not determined in isolation from each other. First, the awards are based on the statistics of each state relative to that of the others. If states are no longer eligible for the grant program based on the unlawful conditions, the allocations could be calculated excluding those states, resulting in a higher amount for the remaining states. That is a hypothetical possibility, not a certainty, because it is possible that the initial allocations would still be calculated as to all states – even those rendered ineligible for funds – and the states would be excluded only at the award stage. If that was the only redistribution, we would remand to the district court for further fact-finding to determine whether the initial grant allocations will be impacted by the

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ineligibility of states due to the unlawful conditions. But we need not remand here because the state Byrne JAG awards are interrelated in other ways that do not require factual development.
What is clear, even without factfinding, is that other statutorily-mandated redistributions of Byrne JAG funds among states will be upended by the imposition of the unlawful Byrne JAG conditions. Just as recipients of Byrne JAG grants have to certify compliance with anti-lobbying statutes and other grant-related requirements in order to be eligible for their grant award, grantees also can have their grant award reduced or increased based on their compliance with the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20927(a), and the Prison Rape Elimination Act (PREA), 34 U.S.C. § 30307(e)(2)(A). In contrast to the award conditions imposed in this case by executive fiat, the conditions of compliance with SORNA and PREA are legislatively-authorized, in explicit statutory language. See 34 U.S.C. § 20927(a),(c), and § 30307(e)(2)(A), (E).
As described above, in the Byrne JAG program, initial allocations of Byrne JAG funds are made to states and, after the states submit their applications with the required certifications, awards of the grant are issued. If a state seeking a Byrne JAG grant is non-compliant with the requirements of SORNA, then its Byrne JAG grant award is reduced by 10 percent. Those funds are then reallocated as an addition to the Byrne JAG grant award to other, SORNA-compliant states in the following fiscal year unless the non-compliant state seeks reallocation of those funds to its own Byrne JAG grant award by certifying that the funds will be used solely to obtain SORNA

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compliance and that request is approved. 34 U.S.C. § 20927(c). The amounts at stake in that redistribution can be significant. For FY 2016, the 10% penalty applied to SORNA-noncompliant states reduced Byrne JAG grants by more than $6 million, with approximately $5 million reallocated to the SORNA-non-compliant states that applied for the funds to promote SORNA implementation, and over a million dollars reallocated as a bonus award to SORNA-compliant states. See Justice Assistance Grant Program, 2016 Technical Report at 7, at https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/jag-technical-report.pdf (last visited 4-8-2020).

Accordingly, a state’s Byrne JAG award can be increased

or decreased based on that state’s own compliance with

SORNA and based on whether other states are non-

compliant. Because the penalty is assessed when the Byrne

JAG grant is awarded, it will not be assessed as to states that

either cannot even apply for the award because they cannot

certify that they are in compliance with the unlawful

conditions, or that apply and are denied an award because

they are not in compliance with those conditions. See Office of

Justice Programs SMART, Byrne JAG Grant Reductions

Under

SORNA

at

https://smart.gov/byrneJAG_grant_reductions.htm

(last

visited 4-8-2020)(noting that the 10 percent reduction is

imposed when the awards are made).

That is a real problem if the unlawful Byrne JAG conditions challenged in this case are imposed upon the states. States that cannot or will not comply with those unlawful conditions will not be able to receive any award under the Byrne JAG grant. In fact, even filing an application for the Byrne JAG grant is problematic for such states. The application

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requirements and penalties leave potential applicants in “sanctuary” or “welcoming” jurisdictions with few options. The chief executive of each state or unit of local government must certify that the unit of government will comply with all Byrne JAG provisions and all applicable federal laws, and must include the certification of compliance with § 1373. The solicitation for Byrne JAG applications makes clear that the certification is subject to review by DOJ, and that a false statement or concealment or omission of a material fact may result in criminal prosecution, and also may trigger civil penalties and administrative remedies including suspension or termination of the award, placement on the DOJ high risk grantee list (with attendant consequences), disallowance of costs, and suspension or debarment of the recipient. See Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation CFDA # 16.738 at 8–9, Appellant’s Appendix, No. 18-2885, at A153–54. In the amicus briefs in this case alone, fourteen states have challenged the conditions, which indicates that the number of states that could be impacted by the imposition is significant. That likelihood is apparent as well in the Department of Justice’s Byrne JAG Application and Award History, which as of March 2019 indicated that approximately $150 million of the $400 million in Byrne JAG funds each year for FY 2017 and FY 2018 still had not been released to grantees “as a result [of] concerns regarding compliance with federal immigration laws and ongoing litigation related to these matters.” U.S. Dept. of Justice, FY 2020 Performance Budget, OJP March 2019, https://www.justice.gov/file/1144566/download at 100 (last visited 4-8-2020).
If states cannot apply for or receive Byrne JAG awards, then that impacts the SORNA penalties collected from and redistributed to the remaining states in the Byrne JAG grants.

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For instance, if SORNA-non-compliant states can no longer qualify for Byrne JAG funds because of the unlawful conditions challenged here, then the 10 percent SORNA penalty will not be assessed as to them because they will have no award. Therefore the penalty amounts will not be redistributed to the Byrne JAG grant the following year to SORNAcompliant states, thus lowering the Byrne JAG grant awards that the remaining states would have received. Those SORNA-compliant states will not receive the additional funds that would have been reallocated from the award of those non-compliant states. Similarly, if SORNA-compliant states are unable to participate in the Byrne JAG program because they cannot comply with the unlawful conditions, then the remaining SORNA-compliant states will receive a larger share of the SORNA penalty funds solely because the unlawful conditions forced the exclusion of those states and impacted the number of SORNA-compliant states left in the redistribution mix. The inability of SORNA-non-compliant states to seek reallocation of the penalty to their own Byrne JAG award, in years for which the unlawful conditions deprive them of any award, will also skew the calculations.
Whether states experience a loss or a windfall, the result is that the imposition of the unlawful Byrne JAG conditions, by precluding states from eligibility for Byrne JAG awards, will alter the Byrne JAG grant amounts for other states, and therefore can alter amounts for localities as well. In other words, if the unlawful conditions are imposed upon the states so as to render some of them ineligible for the Byrne JAG award, the Byrne JAG award for other states will be impacted because the Byrne JAG award for each state is impacted by the amounts redistributed from other states.

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A similar redistribution of funds between states occurs based on compliance with the PREA. The PREA stipulates that a state that does not certify full compliance with its national standards can forfeit 5 percent of Byrne JAG funds unless it certifies that no less than 5 percent of such funds will be used solely to achieve compliance. See 34 U.S.C. § 30307(e)(2)(A). In FY 2019, as a result of the PREA compliance requirement, nearly $3 million in Byrne JAG grant funds were reallocated, held in abeyance, or reduced. See Impact of PREA on Justice Grants, FY 2019 at https://bja.ojp.gov/ sites/g/files/xyckuh186/files/media/document/FY2019-PREAGrant-Impact.pdf (last visited 4-8-2020). If states are unable to comply with certain PREA requirements, the PREA provides that “the Attorney General shall redistribute the funds of the State held in abeyance to other States to be used in accordance with the conditions of the grant program for which the funds were provided.” 34 U.S.C. § 30307(e)(2)(E)(iii).
States that are ineligible for Byrne JAG funds because they cannot comply with the challenged conditions will not be awarded Byrne JAG funds, and therefore the redistribution of Byrne JAG funds that would occur for non-compliance with the PREA will be disrupted. Once again, the impact of the challenged conditions will impact not only the individual state’s Byrne JAG grant amount, but will impact the grant amount of other states as well. Just as the Byrne JAG grants for localities are impacted by the grants for states and each state’s ability to comply with the challenged Byrne JAG conditions, so too the grants for states are impacted by the ability of each other state to comply with those Byrne JAG conditions.

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4. Complete Relief to Plaintiff
The only way to ensure that the plaintiff receives, now and in the future, the Byrne JAG grant amount that it would be entitled to in the absence of the unlawful conditions, is to calculate the amounts for grant recipients as a whole absent the unlawful conditions. Like a river that flows throughout an entire region, in which an impact on one part cannot be separated from the whole and relief for injury to the part must target the whole, relief for one grantee in the Byrne JAG program must target the whole program. Complete relief to Chicago requires that the unlawful grant conditions are not applied to the program at all. In that context, a program-wide injunction is appropriate.
The dissent asserts that SORNA and PREA are irrelevant to a claim involving the Byrne JAG grant. But the focus here is not on the source of the redistribution of Byrne JAG funds; rather, the relevant question is whether that required redistribution renders Byrne JAG funding intertwined, such that the elimination of some states from the Byrne JAG program as a result of the unlawful conditions can impact the funds received by other states and localities in that program. The relevant question is whether the formula for calculating the Byrne JAG award renders one state’s and one locality’s award dependent on the award for other states, and whether the imposition of the unlawful conditions challenged in this lawsuit disrupts that calculation. If the imposition of the unlawful Byrne JAG conditions on the states as a whole could alter the award that a state (and therefore a locality) would receive, then a program-wide injunction is necessary in order for Chicago to receive the award that it would be entitled to in the absence of the unlawful conditions. Chicago’s award is

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impacted not only if the unlawful conditions are applied to its own Byrne JAG application, but if they are applied to deny Byrne JAG awards to Illinois or to other states. Accordingly, the relief that would eliminate the impact of those unlawful conditions on Chicago’s Byrne JAG grant is an injunction preventing the consideration of those unlawful conditions in the awarding of the Byrne JAG grant program-wide. A programwide injunction is necessary to provide complete relief to the plaintiff, and therefore is proper.
Notably, the Attorney General has never tried to establish that the grant awards are not interdependent. In his brief, the Attorney General addressed “the panel majority’s belief that ‘the structure of the Byrne JAG program itself’ supports entry of nationwide injunction.” Appellant’s Brief, No. 18-2885, at 54. But rather than challenge the assumption that the Byrne JAG funds would be redistributed from jurisdictions that lost funding, the Attorney General declared that the panel majority “failed to explain how that redistribution required a nationwide injunction to protect Chicago’s interests,” because such redistribution would benefit Chicago by increasing its grant. Id. at 54–55. At oral argument, the Attorney General again declared only that it is “unclear” whether funds from another applicant could increase Chicago’s award if the conditions rendered that applicant unable to retain or obtain a Byrne JAG award, but again argued that such redistribution would be a windfall of which Chicago could not complain. Under the Attorney General’s theory, then, even if Chicago would receive more funds if the unlawful conditions are applied to other Byrne JAG applicants, that would constitute a surplus and Chicago could not complain that it failed to obtain all relief to which it is entitled. The notion that a plaintiff cannot complain if it becomes a beneficiary of the unlawful

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actions it is challenging is an odd one. It is the equivalent of arguing that a victim of an unlawful pyramid scheme can receive proper relief from the illegal conduct if that victim is given a cut of the profits of that very same ongoing unlawful scheme. Chicago seeks a remedy that provides redress for the unlawful conduct, not one that allows it to profit from the continued imposition of that unlawful conduct as to others. A remedy that essentially makes the City complicit in the action it seeks to prohibit is no remedy at all, and certainly not one that can, by any measure, constitute a remedy grounded in equity.
Courts have an obligation to award proper relief, and a windfall achieved by the imposition of unlawful conditions on other applicants is not proper relief. This is not a situation in which it is impossible to ensure that Chicago receives the award it would be entitled to without the unlawful conditions; it requires only that the unlawful conditions not be applied to the Byrne JAG awards at all. That relief is the proper and complete relief here, and it does not cease to be proper merely because other, non-plaintiﬀs, will thereby be relieved of the unlawful conditions that would otherwise be applied to their grant awards. In fact, relief that requires consistency in the application of conditions to all Byrne JAG grants is truer to the statutory structure. Particularly where, as discussed above, the other equitable factors also weigh in favor of broad relief, there is no reason in equity to deny the remedy that will provide complete relief to Chicago.
Moreover, as discussed above, the impact of the unlawful conditions on the other states would not necessarily result in a windfall. It could also result in a lower grant award than would be proper absent the impact of those unlawful

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conditions. If, for example, SORNA-non-compliant states cannot receive a grant award, then the 10 percent penalty cannot be imposed on their award and redistributed to other states. That will decrease the awards to other SORNA-compliant states, and as set forth above, the state award can impact the local award. The assumption, then, that Chicago could only experience a windfall is unsupported as the statutory formula is structured.
We have determined that the Attorney General lacked the authority to impose the challenged conditions. The proper relief to Chicago is to enjoin the imposition of the conditions to the extent necessary to ensure that Chicago receives the grant award that it would be entitled to if the unlawful conditions were not imposed. In a formula grant structure such as the one presented here, in which grant amounts are based on percentages and the award amounts are interrelated and interdependent, a program-wide injunction is necessary to ensure that Chicago itself receives proper relief. Therefore, even considering only the relief necessary to the plaintiff itself, the district court did not abuse its discretion in imposing a programwide injunction. Because we so hold, we need not consider Chicago’s argument that program-wide relief is proper under the Administrative Procedure Act’s authorization that unlawful agency actions should be “set aside.” See D.C. v. U.S. Dep't of Agric., ___ F.3d ___, 2020 WL 1236657, at *34 (D.D.C. Mar. 13, 2020) and cases cited therein (discussing a line of cases all holding that “the APA’s instruction that unlawful agency actions be ‘set aside’ is ordinarily read as an instruction to vacate, wherever applicable, unlawful agency rules”); see also Sohoni, Lost History at 991 n.466.

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VI. Conclusion
Once again, we address the need to preserve the separation of powers between the legislative and executive branch. The separation of powers is a foundation of our government, not a formality to be swept aside on the path to achieving goals that the executive branch deems worthy. The Attorney General’s nod to checks and balances rings hollow in light of the changing justifications provided here for the conditions, with a new purported legislative “authorization” whenever another is deemed baseless by the court. Rather than an exercise of authority granted to it by the legislature, the conditions imposed here are an executive usurpation of the power of the purse. See Providence, 2020 WL 1429579 at *8 (“[i]t is nose-onthe-face plain that [C]ongress intended Byrne JAG to operate as a formula grant program . … Congress did not make an allowance for any deviation that would justify the actions undertaken by the DOJ in this case.”)
The imposition of the challenged conditions in this manner is an abrogation of the legislative process. Preservation of the separation of powers is paramount if our democracy is to survive.
Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General’s decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the

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anticommandeering doctrine of the Tenth Amendment. We affirm the district court’s grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.

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MANION, Circuit Judge, concurring in the judgment in part and dissenting in part.
Today’s opinion holds unlawful several conditions attached to the Byrne JAG program and aﬃrms the imposition of a nationwide injunction with respect to those conditions. My concurrence addresses all parts except the court’s approval of a nationwide injunction. Broad, sweeping relief of such nature is rarely appropriate, and nothing indicates Chicago needs a nationwide injunction to preserve its Byrne JAG award.
I.
The Attorney General challenges the district court’s conclusion that the notice, access, and § 1373 compliance conditions required of FY 2017 and FY 2018 Byrne JAG applicants are unlawful. He also challenges the same ﬁnding regarding three new conditions placed on FY 2018 grant applicants: the § 1644 compliance condition; the harboring condition; and the additional certiﬁcation condition. These requirements all conﬂict with Chicago’s “Welcoming City Ordinance,”1 which,

1 Although Chicago’s ordinance places the city among other so-called “sanctuary” jurisdictions, Chicago creatively labels itself a “welcoming city,” perhaps to avoid prosecutorial suspicion over whether its elected officials are committing a federal harboring offense. Federal law makes it a crime for any person, “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law,” to “harbor” that alien. 8 U.S.C. § 1324(a)(1)(A)(iii). The same statute also criminalizes encouraging or inducing an alien to “come to, enter, or reside in the United States,” knowing that such entry or residence would be in violation of law. Id. § 1324(a)(1)(A)(iv). With the right facts, a policy like Chicago’s could very well facilitate harboring or at least encourage and induce aliens to enter and reside unlawfully in the United States.

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broadly speaking, forbids the city’s agencies or agents from cooperating with federal immigration authorities unless the individual subject to federal inquiry has an outstanding criminal warrant, a pending felony charge, or gang aﬃliations. Chicago, Ill., Mun. Code § 2-173-042. This ordinance, in my opinion, spoils the many inherent values gained when local and federal law enforcement agencies collaborate, yet the city claims this measure is necessary to foster cooperation between local law enforcement and “undocumented” immigrants, i.e., those here illegally, who might otherwise fear detention and removal (legal consequences) after coming forward as criminal witnesses. The city further insists the cooperation of illegal aliens “is essential to achieve the City’s goals of protecting life and property, preventing crime and resolving problems.” § 2-173-005. I ﬁnd this logic unconvincing when, in 2018, Chicago’s self-reported clearance rates (cases in which a suspect was arrested, charged, and prosecuted) for murder (44.42 percent) and aggravated assault (38.42 percent) fell substantially below the national clearance average for those crimes (62.3 and 52.5 percent, respectively).2 Clearly, willing witnesses are lacking in Chicago despite its “welcoming” policies.
We already addressed the notice and access conditions in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018)

2 Compare 2018 CHI. POLICE DEP’T ANN. REP., at 62 (2019), available at http://home.chicagopolice.org/wp-content/uploads/2019/07/2018AnnualReport-05July19.pdf (last visited April 24, 2020), with FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES 2018, Table 25: Percent of Offenses Cleared by Arrest or Exceptional Means, available at https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topicpages/tables/table-25 (last visited April 24, 2020).

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(“Chicago I”), where we rejected the Attorney General’s reliance on § 10102(a)(6) of the Byrne JAG statute and upheld the district court’s grant of a preliminary injunction regarding those two requirements. Here, the Attorney General relies on § 10102(a)(6) once again, this time maintaining the provision extends to support the new harboring and additional certiﬁcation conditions. But he raises no new meritorious arguments regarding § 10102(a)(6) in this appeal, so I agree with the court that our earlier reasoning warrants the same result here. I also agree that §§ 10102(a)(2) and (a)(4) do not support the harboring condition. Those provisions only permit the Assistant Attorney General to “maintain liaisons” with government agencies regarding criminal justice matters, not to impose conditions on grant money.
That still leaves the Attorney General’s § 1373 compliance condition.3 Section 1373 prohibits states and localities from restricting the ﬂow and maintenance of information regarding the citizenship or immigration status of any individual. 8 U.S.C. § 1373. According to the Attorney General, conditioning Chicago’s grant award on the city’s compliance with this law is proper under § 10153 of the Byrne JAG statute. Section 10153 requires applicants to certify, among other things, compliance with the program’s provisions and “all other applicable Federal laws.” 34 U.S.C. § 10153(A)(5)(D). The Attorney General argues this language captures § 1373, but such logic depends on a revision to the statutory language, one that requires certiﬁed compliance with “all Federal laws,” not just the applicable ones.

3 As the court notes, the Attorney General concedes the two compliance conditions—§ 1373 and § 1644—rise and fall together.

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There are thousands of federal laws. Adopting the Attorney General’s literal position would condition a grant award on certifying compliance with each and every one of them. That cannot be the case. Under its spending power, Congress can attach only those conditions that “bear some relationship to the purpose of the federal spending” and must do so unambiguously. New York v. United States, 505 U.S. 144, 167, 172 (1992) (citations omitted). The Attorney General’s unbounded interpretation ignores this concept. His oversight makes a difference because the relevant statutory context limits § 10153(A)(5)(D)’s “all other applicable Federal laws” language to federal grant applicants. Reading § 10153 as a whole makes this clear. Indeed, the immediately preceding subsections, (A)–(C), all require certiﬁcation of items pertaining directly to the Byrne JAG application itself. Moreover, the Byrne JAG program’s FY 2017 solicitation literature directs applicants to speciﬁc federal laws that the applicants need to abide by. Those laws, unlike § 1373, by their very language pertain expressly to federal grants and grant recipients, further indicating that compliance with § 1373 represents a departure from the grant’s statutory requirements.
The Attorney General’s conditions, viewed in isolation, are perfectly reasonable. Federal oﬃcers have a basic duty to ensure enforcement of and compliance with our country’s immigration laws. That the federal government would require cooperation with its agencies in exchange for grant funds should come as no surprise. Nevertheless, the Constitution places the power to spend money in the legislative branch. See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power … to pay the Debts and provide for the … general Welfare of the United States … .”). The spending power also comes with the ancillary authority to place conditions on the receipt of federal

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funds. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012). So, the executive lacks authority to place conditions on the receipt of federal funds unless Congress vests it with such power. See generally La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act … unless and until Congress confers power upon it.”). Here, context clashes with the Attorney General’s expanded reading of § 10153(A)(5)(D), and he has received no such assignment of power from Congress. Holding Byrne JAG applicants to § 1373, therefore, is not supported by law.
II.
I respectfully dissent, however, from my colleagues’ view that the injunction here should be applied beyond Chicago, nationwide.4 I departed from the panel on this same issue in our prior opinion, see Chicago I, 888 F.3d at 293–300 (Manion, J., concurring in the judgment in part and dissenting in part), and for similar reasons here, I reiterate my disagreement.5

4 I use the term “nationwide” while recognizing that “universal” might be more precise, see Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring): the court’s injunction really prohibits the Attorney General from enforcing a policy with respect to any applicant, regardless of geographic scope. I do not, however, accept the court’s reference to a “program-wide” injunction. This word choice is an obvious euphemism that downplays the injunction’s inappropriate extension to non-parties and tiptoes around the growing criticism of nationwide injunctions in general.
5 I do not dissent, however, from the court’s decision to affirm the injunction’s temporal scope, i.e., “all future years.” Nor do I disagree with remanding for the district court to consider proper injunctive relief regarding the compliance condition.

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A. The Byrne JAG Statute
In Chicago I, the court justiﬁed a nationwide preliminary injunction to avoid “simultaneous litigation of [a] narrow question of law in countless jurisdictions” and because the Attorney General imposed unlawful conditions that applied “uniformly” to all grant applicants. 888 F.3d at 291–92. This time around, it seeks to aﬃrm the same scope of relief on narrower grounds. In a nutshell, the court claims the Byrne JAG statute’s structure permits a nationwide injunction because all applicants—localities and states—are interconnected regarding how much funding they receive. Therefore, according to the court, a nationwide injunction is needed to prevent the Attorney General from enforcing his unlawful conditions in other jurisdictions (beyond Chicago) because if those jurisdictions are denied funding for failing to comply, then that will aﬀect Chicago’s award.6
The court misinterprets the statute. With one exception, none of the provisions invoked by the court—read singly or in combination—make Chicago’s award contingent on any other governing body’s compliance with the Attorney General’s conditions. See generally 34 U.S.C. § 10156. For example, any reallocated funds Chicago receives under § 10156(e)(1) come from excess awards granted to other local governments, not from those jurisdictions’ noncompliance. And, the joint application process described in § 10156(d)(4) is likewise silent on whether one local government’s failure to comply can

6 The court relied on this same statute-based logic in its previous decision, but to a lesser degree and without the same detailed discussion as here. See Chicago I, 888 F.3d at 292–93.

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alter the grant awards of its fellow “geographical constituent units.”
Furthermore, the court theorizes that the disqualiﬁcation of a given locality (for failing to comply with the Attorney General’s conditions) can alter Chicago’s award amount because Chicago’s funds depend on both “the number of applicants” and its “share of all violent crimes reported in the state relative to those other applicants.” Maj. Op. at 81 (emphasis added). That’s not what the statute says. Subsection 10156(d)(2)(A) governs grant allocations to localities. It directs the Attorney General to allocate an amount equal to the ratio of (1) the average number of violent crimes reported by the applicant over the three most recent years for which such data is available to (2) the number of “violent crimes reported by all units of local government in the State in which the [applicant] is located … for such years.” Id. (emphasis added). By its own language—“all units of local government”—§ 10156(d)(2)(A) simply compares the applicant’s violent crimes against those reported by all localities within the applicant’s state. In other words, even if another Illinois locality fails to comply with the notice and access conditions, its violent crime statistics are not removed from § 10156(d)(2)(A)’s formula; they are still used to calculate Chicago’s award. The ratio remains the same regardless of any other locality’s noncompliance, and the yield for Chicago, therefore, is not aﬀected.
The one exception, foreshadowed above, is § 10156(f). That subsection provides:
If the Attorney General determines … that a State will be unable to qualify or receive funds under this part … then such State’s allocation (or portion thereof) shall be awarded by the

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Attorney General to units of local government, or combinations thereof, within such State … .
Id. (emphasis added). So, if a state falls out of compliance, any redistribution of funds beneﬁts that state’s local governments. But if, for example, California refuses to comply with the Attorney General’s conditions, then California’s allocation would not go to Chicago or otherwise change Chicago’s award at all. The states’ allocations are siloed by state; in this example, California’s allocation (or portion thereof) would be redistributed only to compliant localities within its borders.
The court showcases the Keep Illinois Families Together Act, 5 ILCS 835, to emphasize that “[t]he possibility of [§ 10156(f)] impacting Chicago’s grant amount is far from negligible” because the Attorney General may determine the legislation runs afoul of his unlawful requirements. Maj. Op. at 83. Maybe so. But while the possibility of an Illinois law impacting Chicago’s Byrne JAG award is “more than negligible” under § 10156(f), the possibility of another state’s law impacting Chicago’s award is zero.
My colleagues’ reliance on the reallocation clauses in SORNA and PREA similarly falls short of justifying nationwide relief. SORNA and PREA each provide that jurisdictions failing to implement the statutes’ mandates will be penalized with a reduction to their Byrne JAG award. 34 U.S.C. § 20927(a) and § 30307(e)(2)(A). Those reductions are redistributed among SORNA- and PREA-compliant jurisdictions. Id. § 20927(c) and § 30307(e)(2)(E)(iii). The court’s theory is that, if states other than Illinois both (1) are held ineligible for a Byrne JAG grant because of the Attorney General’s unlawful conditions and (2) fail to implement SORNA and PREA, then Illinois—and perhaps by extension, Chicago—will miss out

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on the reallocated penalties. The court thus believes only a nationwide injunction can prevent injury to Chicago.
But Illinois and Chicago are not guaranteed reallocated funds in the ﬁrst place; that depends on whether any other jurisdictions fail to implement SORNA and PREA. Even still, how much money would Chicago stand to receive? Any reallocated penalties, while not small sums themselves, are a drop in the bucket compared to all Byrne JAG funds. As the court notes, in FY 2016, reallocated SORNA penalties exceeded $6 million across the country. Reallocated PREA penalties in FY 2019 totaled nearly $3 million. Compare those amounts with nearly $275 million in Byrne JAG funds distributed for FY 2016 and over $252 million for FY 2019.7 Describing the reallocated SORNA and PREA penalties as “signiﬁcant” overstates the matter, yet the court’s analysis of SORNA and PREA is a key player in its approval of injunctive relief that stretches beyond Chicago.
Since other state and local governments’ compliance with the Attorney General’s conditions does not aﬀect Chicago’s award amount, the purported need for a nationwide injunction disappears as Chicago cannot prove (and has not done so here) how an injunction imposed throughout the country—

7 See https://www.bjs.gov/content/pub/pdf/jagp16.pdf (last visited April 24, 2020); https://external.ojp.usdoj.gov/selector/title?solicitationTitle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%20Justice%20 Assistance%20Grant%20(JAG)%20Program%20%20State%20Solicitation&po=BJA (last visited April 24, 2020); https://external.ojp.usdoj.gov/selector/title?solicitationTitle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%20Justice%20 Assistance%20Grant%20(JAG)%20Program%20%20Local%20Solicitation&po=BJA (last visited April 24, 2020).

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upon every state and locality—is necessary to protect its own interests. See California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (Nationwide injunctive relief “must be necessary to give prevailing parties the relief to which they are entitled.”) (internal quotations and citation omitted). Indeed, if granted injunctive relief for just Chicago, then Chicago cannot lose; it is guaranteed at least the same amount of grant money, if not more should the State of Illinois fail to qualify for funding. This outcome stays the same under the court’s statutory interpretation, too, where Chicago’s funds can be altered by the noncompliance of other states or localities in other states. Even then, a limited injunction would ensure Chicago receives either the same or more funding.
The court deems this relief not “proper” because it fears Chicago could receive a windfall when the would-be awards of other unlawfully denied applicants make their way into Chicago’s grant. First of all, this still does not justify nationwide relief. At best, it serves as a basis for an Illinois-wide injunction because, again, nothing indicates the noncompliance of local governments or states outside Illinois will result in any additional funds being redistributed to Chicago.
More importantly, the “proper” relief the court speaks of is not for Chicago’s redress, but for that of unrelated nonparties; the relief here ensures other applicants receive their deserved slice of the pie. This approach oversteps the narrow and well-established maxim that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiﬀs,” not to non-litigant third parties. Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (emphasis added); see also Int’l Kennel Club of Chi., Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1094 (7th Cir. 1988) (holding

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that the geographic scope of an injunction “must not exceed the extent of the plaintiﬀ’s protectable rights.”) (emphasis added); Azar, 911 F.3d at 584 (“The scope of [injunctive relief] must be no broader and no narrower than necessary to redress the injury shown by the plaintiﬀ[s].”) (emphasis added).
The “usual rule,” after all, is “that litigation is conducted by and on behalf of the individual named parties only.” Califano, 442 U.S. at 700–01. Thus, the court’s approach also breaks with “American courts’ tradition of providing equitable relief only to parties … .” Trump v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring) (emphasis added). As Justice Thomas outlined:
For most of our history, courts understood judicial power as fundamentall[y] the power to render judgments in individual cases. Misuses of judicial power, Hamilton reassured the people of New York, could not threaten the general liberty of the people because courts, at most, adjudicate the rights of individual[s].
Id. at 2427–28 (alterations in the original) (internal quotation marks and citations omitted).8 Chicago has failed to show why a nationwide injunction—and nothing less—is necessary to preserve its Byrne JAG award, and the court’s statute-based

8 In the analogous context of Article III standing, the Supreme Court has also “caution[ed] … that ‘standing is not dispensed in gross’: A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006)).

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explanation is, in my view, inadequate to rescue the city’s request.
B. Mendoza Concerns
Even were the court’s statutory interpretation sound, I would still dissent because its reasoning necessarily depends on the following assumptions: that the parties presented the district court with the very best arguments on the merits; that no other jurisdictions’ standards for injunctive relief would yield diﬀerent results than in this case; that what goes for a Chicago-speciﬁc ordinance goes for all others; and that no trial judge sitting in the 93 other districts could possibly reach a diﬀerent decision on these issues.
The Supreme Court cautioned against these same kinds of assumptions in United States v. Mendoza, determining that a judicial holding against the federal government in one case could not be used by another party in another case “to preclude relitigation of issues … .” 464 U.S. 154, 162 (1984). The Court was concerned that allowing parties to use preclusion in this way “would substantially thwart the development of important questions of law by freezing the ﬁrst ﬁnal decision rendered on a particular legal issue,” thereby depriving the Court of the beneﬁt it receives when the various circuits explore and address diﬃcult legal issues. Id. at 160. Thus, in barring the use of such nonmutual oﬀensive collateral estoppel against the government, the Court sought to promote “thorough development of legal doctrine by allowing litigation in multiple forums.” Id. at 163.
While the Court in Mendoza did not address its concerns within the framework of nationwide injunctions, its reasoning nonetheless applies here. Indeed, the Fourth and Ninth

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Circuits have overruled nationwide injunctions as preventing the development of divergent views and outcomes. See Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393 (4th Cir. 2001) (remanding nationwide injunction in favor of more limited relief because such a broad measure encroaches on other circuits’ ability to develop their own precedent, relying on Mendoza), overruled on other grounds by Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012); East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029– 30 (9th Cir. 2019) (criticizing nationwide injunctions for depriving other parties of the ability to litigate issues in other jurisdictions, interfering with judicial decisionmaking, and preventing the percolation of legal issues and the development of the law, citing accordance with Mendoza in a footnote); Azar, 911 F.3d at 583–84 (determining nationwide injunction overbroad, citing Mendoza’s concerns).9
By aﬃrming the nationwide scope of relief here, the court blocks the underlying issues from percolating through the lower courts and thereby hinders the issues’ development, prevents divergent legal views and opinions from coming to the fore, and forces all future litigants in this country to accept the determination of one district judge who was presented with one city’s ordinance and who took arguments from one set of parties. These are real, tangible harms that impair our

9 We have also invoked Mendoza in the Rule 23 context to uphold a geographically limited class in light of “the Supreme Court’s admonition that certification of a nationwide class may have a detrimental effect by foreclosing adjudication by a number of different courts and judges, and of increasing, in certain cases, the pressures on [the Supreme Court’s] docket.” Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (alteration in the original) (internal quotations and citation omitted).

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federal legal system. See Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring) (“[Nationwide] injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”). And the fact that ﬁve circuits have now sounded oﬀ on the Attorney General’s conditions does not lessen the need for other courts to do so. Diversity of thought and opinion that ﬂows from percolation is meant to beneﬁt not only the Courts of Appeals, but our Supreme Court as well. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“[W]hen frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring ﬁnal pronouncement by this Court.”). Why should the judiciary call it a day after only ﬁve circuits weigh in, especially when they are split?
III.
The phenomenon of nationwide injunctions began to emerge in the latter half of the twentieth century but has “exploded in popularity” in recent years. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring). Indeed, in the public domain, the Attorney General has represented that, as of September 2019, the current administration had already faced at least forty such injunctions, compared with twenty total throughout the previous administration’s eight years. William Barr, End Nationwide Injunctions, The Wall Street Journal, Sept. 5, 2019, http://www.wsj.com/articles/end-nationwide-injunctions-11567723072 (last visited April 24, 2020). That ﬁgure has since gone up.

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The nationwide injunction trend has also received scrutiny from the academy, and as Justice Thomas cautioned, the Supreme Court will be “dutybound to adjudicate” the lower courts’ authority to issue such “legally and historically dubious” injunctions should the practice continue. Hawaii, 138 S. Ct. at 2429 (Thomas, J., concurring).
Last year, when ordering a limited injunction to ensure relief to the sole plaintiﬀ before him, Judge Bennett of the District of Maryland observed:
It is clear that most of the nationwide injunctions issued against the federal government in the past two years have come from United States District Courts in states less favorably inclined politically to the current administration. It is also clear that most of the nationwide injunctions against the federal government in the years before also came from United States District Courts in states less favorably inclined politically to the previous administration. It is important that the federal judiciary not allow itself to become part of underlying policy debate.
Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d. 602, 619 n.12 (D. Md. 2019) (emphasis added) (internal quotations and citations omitted). Considering the recent ﬂood of nationwide injunctions, I echo Judge Bennett in emphasizing this ﬁnal point: we must not allow nationwide injunctions to serve as pretext for judicial activism.
An injunction is a “drastic and extraordinary” remedy, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010), outdone only by an injunction issued on a national scale. This

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type of relief should be issued only when absolutely necessary, and it is far from necessary here. This is a funding case at its core, not an immigration case, where a nationwide injunction may, in very limited circumstances, be appropriate. See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (upholding a nationwide injunction on the President’s “travel ban” because plaintiﬀs were “dispersed throughout the United States” and there existed a need to apply immigration laws uniformly). Those circumstances are not present here. Therefore, once again, I would remand this issue in its entirety to the district court with instructions to curtail its injunction so as to prevent the Attorney General from enforcing the unlawful conditions with respect to Chicago’s funds only.